Amalgamated Transit Union, Local Union No. 1433, AFL-CIO (Veolia Transportation Services, Inc. Phoen

National Labor Relations Board - Board Decisions

Feb 12, 2014

360 N.L.R.B. 261 (N.L.R.B. 2014)

AMALGAMATED TRANSIT LOCAL 14333 (VEOLIA TRANSPORTATION SERVICES) 261
360 NLRB No. 44
Amalgamated Transit Union, Local Union No. 1433,
AFL–CIO (Veolia Transporation Services, Inc.,
Phoenix Division) and Charles Weigand. Case
28–CB–078377
February 12, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On November 28, 2012, Administrative Law Judge
Keltner W. Locke issued the attached decision. The
Charging Party filed exceptions and a supporting brief
and the Respondent filed cross-exceptions and a support-
ing brief. Both parties filed answering briefs, and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs, and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified1 and to adopt his recommended Order as modi-
fied and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Amalgamated Transit Union, Local Union

1 In affirming the judge’s finding that the Respondent did not vio-
late the Act by failing to remove certain comments from its Facebook
page, we find it unnecessary to rely on the judge’s application of the
Communications Decency Act, 47 U.S.C. § 230 (CDA). Chairman
Pearce and Member Hirozawa find that the comments were not
8(b)(1)(A) threats, and further find it significant that the individuals
who posted them were neither alleged nor found to be agents of the
Respondent. Member Miscimarra relies solely on the latter justification
(the fact that the individuals who posted the comments were neither
alleged nor found to be agents of the Respondent). Because the com-
ments included references to physical violence (i.e., suggesting that a
fellow union member would get “2 black eyes” if he crossed the picket
line, and asking if members could “bring Molotov Cocktails this time”
in response to the Respondent’s statement that it knew where the
“scabs” were housed), Member Miscimarra does not agree that the
comments would have been permissible under Sec. 8(b)(1)(A) even if
made by agents of the Respondent Union, and he does not join in this
aspect of the majority’s opinion.
For the reasons stated by the judge, we affirm his dismissal of the al-
legation that the Union threatened unspecified reprisals in response to
an unknown member’s providing the Charging Party with printouts of
Union Facebook pages to give to the Board. The Charging Party con-
tends in his exceptions that the Respondent’s threat to deactivate its
Facebook page constituted a threat of reprisal and the actual deactiva-
tion constituted a reprisal. We reject this contention. The General
Counsel neither alleged nor litigated that conduct as a threat or act of
reprisal. See P&C Food Markets, Inc., 282 NLRB 894, 896 fn. 8
(1987) (Board declined to consider union’s exception because conduct
was neither alleged in complaint nor litigated before the judge).
2 We shall modify the judge’s recommended Order to conform to
the Board’s standard remedial language, and we shall substitute a new
notice to conform to the Order as modified.
No. 1433, AFL–CIO, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Threatening employees that they will receive less
favorable representation because they exercised their
right to refrain from participating in a strike.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its offices and meeting halls in Phoenix, Arizona, copies
of the attached notice marked “Appendix.”3 Copies of
the notice, on forms provided by the Regional Director
for Region 28, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in con-
spicuous places, including all places where notices to
employees and members are customarily posted. In ad-
dition to physical posting of paper notices, notices shall
be distributed electronically, such as by email, posting on
an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates
with its members by such means. Reasonable steps shall
be taken by the Respondent to ensure that the notices are
not altered, defaced, or covered by any other material.
(b) Within 14 days after service by the Region, deliver
to the Regional Director for Region 28 signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Phoenix, Arizona facility, if it wishes, in all
places where notices to employees are customarily post-
ed.
(c) Within 21 days after service by the Region, file
with the Regional Director for Region 28 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated Federal labor law and has ordered us to post and
obey this notice.

3 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT threaten that you will receive less favor-
able representation because you exercise your right to
refrain from participating in a strike.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
AMALGAMATED TRANSIT UNION, LOCAL UNION
NO. 1433, AFL–CIO
Johannes Lauterborne, Esq. and Eva Herrera, Esq., for the
Acting General Counsel.
Michael J. Keenan, Esq., for the Respondent.
Charles Weigand, for the Charging Party.
DECISION
STATEMENT OF THE CASE
KELTNER W. LOCKE, Administrative Law Judge. Because of
Section 230 of the Communications Decency Act of 1996, the
Government may not hold Respondent liable for comments
which union members posted on its Facebook page. However,
Respondent violated Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) because of statements its agents made
on the picket line.
Procedural History
This case began on April 6, 2012, when Charles Weigand, an
individual (the Charging Party), filed the initial unfair labor
practice charge, which was docketed as Case 28–CB–078377.
The Respondent, Amalgamated Transit Union, Local Union
No. 1433, AFL–CIO (referred to below as Respondent or the
Union), received service of the charge on about April 9, 2012.
After an investigation, the Regional Director for Region 28
of the National Labor Relations Board (the Board), on behalf of
the Board’s Acting General Counsel, issued a complaint. Re-
spondent filed a timely answer.
On September 11, 2012, a hearing opened before me in
Phoenix, Arizona. On that date and the next two, the parties
presented evidence. The hearing closed on September 13,
2012. Thereafter, the parties filed briefs.
Admitted Allegations
Based on admissions in Respondent’s answer, I find that the
Acting General Counsel has proven the allegations raised in
complaint paragraphs 1, 2(a), (c), and (d), (3), and 5(a), (b), and
(c). Therefore, I conclude that the unfair labor practice charge
was filed and served as alleged.
Further, based on those admissions, I conclude that Re-
spondent is a labor organization within the meaning of Section
2(5) of the Act and that it is the exclusive representative, within
the meaning of Section 9(a) of the Act, of a unit of employees
of Veolia Transportation Services, Inc.—Phoenix Division (the
Employer), an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and which
meets the Board’s standards for the assertion of its jurisdiction.
Therefore, Respondent is subject to the Board’s jurisdiction,
which appropriately may be asserted.
Additionally, based on Respondent’s admissions, I conclude
that the bargaining unit it represents is appropriate for purposes
of collective bargaining within the meaning of Section 9(b) of
the Act. Specifically, that unit consists of the following:
All full-time and part time bus operators employed by the
Employer; excluding all other employees, office clerical em-
ployees, supervisors, dispatchers, and guards as defined in the
Act.
The Employer has recognized Respondent as the exclusive
representative of the employees in this unit since about 2001,
and this recognition has been embodied in collective-bargaining
agreements, the most recent of which is effective from March
15, 2012, to June 30, 2015.
Respondent’s answer also admitted that the following indi-
viduals, which the complaint alleges to be its agents within the
meaning of Section 2(13) of the Act, are its agents “for some
purposes.” Based on that admission and the record as a whole,
I find that the following individuals are Respondent’s agents:
Bob Bean, president; Michael Cornelius, vice president; Dana
Kraiza, recording secretary; and Frank Zuckerbrow, executive
board officer.
Although Respondent’s answer originally had admitted the
agency status (for some purposes) of Lisa Pacheco-Estrada
(which the complaint identified as a “strike team leader”), the
Respondent amended its answer to deny this allegation. I con-
clude that the record is insufficient to establish that she was
Respondent’s agent.
At hearing, the Acting General Counsel amended complaint
paragraph 4 to add the allegations that the following individuals
were members of Respondent’s executive board, strike team
leaders, and Respondent’s agents within the meaning of Section
2(13) of the Act: Dennis Paulson, Arturo Suastegui, Michael
Riley, James Washington, Dwayne Handy, and Sebastran Al-
dama. Respondent has denied these allegations, so I will return
to them later in this decision.
Contested Allegations
As described above, the Respondent represents a unit of bus
drivers employed by Veolia Transportation Services, a private
contractor that provides public bus services for the city of
Phoenix, Arizona. In March 2012, the Union engaged in a 6-
day strike. The Government alleges that Respondent made
certain statements which restrained and coerced employees in
the exercise of their right to refrain from engaging in this con-
certed activity by crossing the picket line and continuing to
work.
AMALGAMATED TRANSIT LOCAL 14333 (VEOLIA TRANSPORTATION SERVICES) 263
Many of the statements which the Government alleges to be
unlawful threats appeared solely on the Union’s Facebook
page. In general, however, the individuals who made the
statements were not Respondent’s officials and the Acting
General Counsel does not allege them to be Respondent’s
agents. Rather, the Government seeks to impose liability by
arguing that Respondent had a duty to disavow the statements
but did not.
Such a “refusal-to-disavow” theory, applied to an Internet
website, presents novel issues which implicate Section 230 of
the Communications Decency Act of 1996 and the First
Amendment. Therefore, it is particularly important that the
reasoning here be explicit and transparent, so that it can be
scrutinized on appeal. To assure that the Government’s argu-
ments are presented exactly, rather than muddied through para-
phrase, I will quote, to a greater extent than usual, from the
Acting General Counsel’s posthearing brief.
Complaint Subparagraphs 6(a) and (b)
Complaint subparagraph 6(a) alleges that since about mid-
January 2012, Respondent, on its social networking site (1)
threatened employees with less favorable representation be-
cause employees refused to participate in Respondent’s strike
against the Employer; and (2) threatened employees with phys-
ical harm because employees refused to participate in Respond-
ent’s strike against the Employer. Complaint subparagraph
6(b) alleges that about mid-March 2012, on its social network-
ing site, Respondent threatened employees with violence by the
use of explosives because employees refused to participate in
Respondent’s strike against the Employer.1 Respondent has
denied these allegations.
The complaint’s term, “social networking site,” refers to the
Respondent’s Facebook page, which was administered by the
Union’s vice president, Michael Cornelius. The Acting Gen-
eral Counsel’s brief accurately describes the operation of this
Facebook page as follows:
To access Facebook initially, a user must log on to Face-
book.com and create a Facebook profile. The user can then
send an electronic “friend” request to other users or to a Face-
book page. In the case of RFP [Respondent’s Facebook
Page], Cornelius accepted “friend” requests only from Re-
spondent’s members in good standing by checking the re-
quests against Respondent’s list of members in good standing.
Cornelius also removed “friends” from RFP after the
“friends” fell out of good standing, typically for failing to pay
Respondent’s dues, or after the “friends” resigned their mem-
bership with Respondent or ended their employment with the
Employer. It sometimes took Cornelius one month or longer

1 The allegation which now appears as complaint subpar. 6(b) origi-
nally was designated complaint subpar. 6(a)(3). Before hearing, the
Acting General Counsel filed a Notice of Intent to Amend Complaint
which changed the dates on which the conduct described in subpars.
6(a)(1) and (2) allegedly occurred. Originally, the complaint had al-
leged that this conduct took place sometime in mid-March 2012, but the
amendment changed these allegations to mid-January. However, the
amendment did not affect the date alleged for the conduct described in
subpar. 6(a)(3), which remained sometime in mid-March 2012. There-
fore, what had been subpar. 6(a)(3) became subpar. 6(b).
to delete “friends” from RFP, which meant that non-members
of Respondent or members no longer employed by the Em-
ployer continued to have access to RFP during this time peri-
od.
Once a “friend” of RFP logged in to RFP, the “friend” could
post a message to RFP’s “wall.” All “friends” of RFP would
be able to see this message, otherwise known as a “post.” A
“friend” of RFP could then click on the post’s “like” button.
In addition or in the alternative, a “friend” could write a mes-
sage, otherwise known as a “comment,” in response to the
post. A “friend” also could click on the comment’s “like”
button. Once they logged in to RFP, all “friends” of RFP
could see all the posts, in chronological order, on the RFP, the
comments to these posts, and who authored both the posts and
comments, as well as who “liked” a particular comment or
post. Depending on the date of the post, a “friend” may need
to scroll down the page of the computer screen until a particu-
lar post, and comments in response to that post, appear.
At hearing, the Government introduced into evidence exten-
sive printouts of material which had appeared on Respondent’s
Facebook page. Because of the large volume of material, I
asked the Acting General Counsel to identify in the posthearing
brief exactly which statements on these printouts the Govern-
ment alleged to violate the Act.
Often in unfair labor practice proceedings, a typical threat,
which restrains and coerces employees in violation of Section
8(b)(1)(A), consists of a sentence or two. However, the Acting
General Counsel’s brief cited longer passages which more re-
sembled conversations than soundbites. Specifically, the brief
stated:
On January 21, 2012, someone with the user name of Wade
Zimmerman posted the following post to RFP:
THINKING of crossing the line. THINK AGAIN!
THINK about the future. When WE return, YOU will
be gone. It is a fact that in union strikes across the nation
that within six months after the strike ends that 90% of the
workers that crossed the line are no longer employed
there. You may lose a check or two now or risk losing it
all later.
THINK of the cold shoulders, the negative attitudes,
and don’t make any mistakes because your former friends
and co-workers will report you in a heartbeat.
THINK that Veolia will protect you? They will have
less respect for you than we will after the way you rolled
over for them.
THINK that the union will protect you. They may
have to represent you, but will they give it 100%.
THINK of how your family and neighbors will feel
when we hold a informational picket line outside YOUR
HOUSE. YES we can, and YES we will.
THINK about your own self respect. I know that I
won’t respect you in the morning. Will you?
THINK ABOUT IT!
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sixteen comments were posted in response to the Zimmerman
post. The last 10 comments posted were as follows:
Bill Spike @Jim can’t afford to lose insurance I need
eye injection each to save my eyesight cost is 3800.00
each time I go what do I do.
Jim Shaw You go get your eye injections and tell them
that you are willing to pay at a reduced price. They will
work with you. They will even take payments. Tell them
that your are a bus operator on strike and they should have
some sympathy. However, don’t tell them that you are a
sarcastic asshole. . . . they might just make you pay more!
Ha Ha Ha. . . .)
Joaquin Dominguez If u cross bill you will lose your
eyesight but from the 2 black eyes Lisa is gonna give u lol
Bill Spike Is that a threat or promise Joaquin
Jim Shaw Bill. . . . didn’t you know. . . . Lisa will
have you for lunch if so much as think about crossing? I
PROMISE you that!
Barnell Uncleb Walker Better yet jim. . . . they will tell
him to get da hell out . . . cuz they don’t serve his kind
. . . . lol
Jim Shaw Bill. . . . I wish you the best and I hope your
eyes get better. Take care and do what you need to do and
always remember. . . . veolia does not care about you. . . .
We do!
Bill Spike Jim I have macula degeneration that’s why I
need injection which is 2000 a piece without insurance I
can’t afford it and I will lose eyesight
Atu Lisa Pacheco Estrada I have the right to remain si-
lent, anything I say or do can and will affect in a Court of
law. . . .
Bill Spike Hahahahaha lisa
On March 11, 2012, the second day of the strike, Cornelius
posted the following post on [Respondent’s Facebook page]:
We found them!! We found out where they are hous-
ing the scabs. We will be setting up lines at the hotel to-
morrow. My friend at the PD asked if we can wait so they
can have a unit out there and I told him yes. So we will
put them up tomorrow afternoon.
In response to Cornelius’s post, 13 comments were posted.
The last of these comments, by someone with a user name of
Patrick Geurs, posted on March 12, 2012, during the third day
of the strike, was: “Can we bring the Molotov Cocktails this
time?” Someone with the user name of Eddie Aucoin “liked”
this comment.
The Acting General Counsel’s brief did not identify any oth-
er statements which had appeared on Respondent’s Facebook
page as being part of the alleged violations. Therefore, I con-
clude that the Government relies only on the material quoted
above to establish the violations alleged in complaint para-
graphs 6(a)(1), (2), and (b).
Additionally, the legal argument section of the Acting Gen-
eral Counsel’s brief further narrows the allegations. The brief
states, in part:
Respondent violated the Act by failing to disavow the follow-
ing threat by Zimmerman: “THINK that the union will protect
you. They may have to represent you, but will they give it
100%.” The post was explicitly addressed to anyone who
was thinking of crossing the picket line. This post unlawfully
coerced employees, including Respondent’s members, that
Respondent would represent those who chose to work during
a strike with less diligence than it would represent strikers.
See, e.g., Teamsters Local 298 (Schumacher Electric Corpo-
ration), 236 NLRB 428, 434 (1978).
Clearly, the Government relies upon this statement by Zim-
merman as the basis for the allegation, in complaint subpara-
graph 6(a)(1), that Respondent threatened employees with less
favorable representation because the employees refused to par-
ticipate in Respondent’s strike. The Acting General Counsel’s
brief also identifies the statements which underlie the allega-
tions raised in complaint subparagraphs 6(a)(2) and (b), respec-
tively:
Respondent also violated the Act by its failure to disavow the
Dominguez threat to Bill Spike that Lisa Pacheco Estrada
would give Spike two black eyes if he crossed the picket line
. . . Respondent further violated the Act by its failure to disa-
vow the Geurs threat to bomb with “Molotov Cocktails” em-
ployees who crossed the picket line.
To summarize, based on the Acting General Counsel’s brief,
quoted above, I conclude that complaint subparagraph 6(a)(1),
which alleges that Respondent “threatened employees with less
favorable representation because employees refused to partici-
pate in Respondent’s strike,” refers to a comment posted by
Wade Zimmerman: “THINK that the union will protect you.
They may have to represent you, but will they give it 100%.”
Additionally, based on the Acting General Counsel’s brief, I
conclude that complaint subparagraph 6(a)(2), alleging that
Respondent “threatened employees with physical harm because
employees refused to participate in Respondent’s strike,” refers
to this comment posted by Joaquin Dominguez: “If u cross bill
you will lose your eyesight but from the 2 black eyes Lisa is
gonna give u lol.” Further, I conclude that complaint subpara-
graph 6(b), which alleges that Respondent “threatened employ-
ees with violence by the use of explosives,” refers to a com-
ment posted by Patrick Geurs: “Can we bring the Molotov
Cocktails this time?”
Although the complaint includes a paragraph alleging certain
individuals to be Respondent’s agents, Guers, Zimmerman, and
Dominguez are not among them. Clearly, the Government does
not rely on an agency theory in seeking to hold Respondent
liable for the statements of these three.
Rather, as the Acting General Counsel’s brief, quoted above,
makes clear, the Government argues that Respondent had a
duty to disavow these statements posted on its Facebook page,
and failed to do so. Citing case law for the proposition that a
union becomes responsible for the acts of its pickets on a picket
line when the union fails to take corrective action or disavow
AMALGAMATED TRANSIT LOCAL 14333 (VEOLIA TRANSPORTATION SERVICES) 265
the actions, the Acting General Counsel argues that “Respond-
ent is liable for the Zimmerman post because [Respondent’s
Facebook page] is an electronic extension of Respondent’s
picket line.”
To the contrary, I conclude that Respondent’s Facebook page
is in no way “an electronic extension” of its picket line. Initial-
ly, it may be noted that the Facebook page existed well before
the picket line. Indeed, complaint subparagraphs 6(a)(1) and
(2), as amended, allege that Respondent violated the Act be-
cause of postings on this Facebook page in January 2012, some
2 months before the strike. Thus, the Facebook page did not
grow out of the strike.
Moreover, a picket line serves a purpose quite distinct from
that of the Facebook page. A picket line proclaims to the pub-
lic, in a highly visible way, that the striking union has a dispute
with the employer, and thus seeks to enlist the public in its
effort to place economic pressure on the employer. The picket
signs notify sympathetic members of the public not to purchase
the employer’s goods or services. The picket line also signals
to employees—both employees of the struck employer and, in
certain instances, employees of other employers—that there is a
labor dispute, to the end that these employees will not cross the
picket line but instead will withhold their services. Thus, a
picket line makes visible in geographic space the confrontation
between the two sides.
In contrast, Respondent’s Facebook page does not serve to
communicate a message to the public. To the contrary, it is
private. Moreover, it does not draw any line in the sand or on
the sidewalk.
Unlike a website in cyberspace, an actual picket line con-
fronts employees reporting for work with a stark and unavoida-
ble choice: To cross or not to cross. Should someone acting as
a union’s agent make a threat while on the picket line, the coer-
cive effect is immediate and unattenuated because it falls on the
ears of an employee who, at that very moment, must make a
decision concerning the exercise of his Section 7 rights.
Considering the marked differences, the Respondent’s Face-
book page certainly does not amount to an extension of Re-
spondent’s picket line and was not created for that purpose.
Respondent’s vice president, Cornelius, fashioned the website
to be a forum for the sort of unfettered, candid discussion
which typifies the Internet. Thousands, perhaps hundreds of
thousands of other websites host such robust discussions with-
out creating the impression that all the comments posted ex-
press the opinions of the host. The Acting General Counsel’s
theory, that Respondent has a duty to disavow opinions posted
by others, would impose a substantial burden on the free speech
rights of this one type of organization, a burden not borne by
others on the Internet.
It also concerns me that the Government should argue that
Respondent had a duty to disavow because requiring anyone to
disavow someone else’s statement amounts to compelled
speech and deeply implicates the First Amendment, which pro-
tects not only the right to speak but also the right to refrain
from speaking. See, e.g., Pacific Gas & Electric Co. v. Public
Utilities Commission of California, 475 U.S. 1 (1986); Miami
Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974);
Wooley v. Maynard, 430 U.S. 705 (1977).
Imposing a duty to disavow someone else’s speech also
would push the Board’s remedial authority to the edge of the
envelope and perhaps beyond. When a respondent threatens an
employee in violation of Section 8(b)(1)(A) or (a)(1) of the Act,
the threatening words are the deed itself. They are as much a
part of the deed as teeth are part of the bite, and only by pulling
them can the coercive effect be neutralized. So, the Board’s
remedial authority does include the power to order a respondent
to retract its own unlawful words, just as it includes the power
to order a respondent to undo an unlawful discharge it effected
and to pay backpay. However, that is quite different from or-
dering someone to disavow a threat he did not make and for
which he is not responsible.
Although no party has raised Section 230 of the Communica-
tions Decency Act of 1996, justice requires that it be considered
sua sponte. A Federal agency must know Federal law and give
it effect. Section 230 states, in part: “No provider or user of an
interactive computer service shall be treated as the publisher or
speaker of any information provided. . . .” 47 U.S.C. §
230(c)(1). It further provides that the “term ‘information con-
tent provider’ means any person or entity that is responsible, in
whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer
service.” 47 U.S.C. § 230(f)(3).
Court decisions interpreting and applying these provisions
often have related to civil defamation claims. See, e.g., Austin
v. CrystalTech Web Hosting, 125 P.3d 389 (Ariz.Ct.App.
2005); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.
1997) (statute barred an action alleging negligent online publi-
cation of defamatory material). However, the statutory lan-
guage quoted above applies in other contexts as well. Here, it
precludes treating Respondent “as the publisher or speaker of”
the comments posted by Guers, Zimmerman, and Dominguez.
Because merely posting these comments on Respondent’s
Facebook page does not make Respondent the publisher or
speaker of them, it follows that Respondent had no duty to
disavow them. To hold otherwise would compel speech. Alt-
hough the Board has power to require a respondent to retract an
unlawful threat which the respondent itself made, such a speak-
er’s duty to retract arises only because the speaker had made
the unlawful statement and was responsible for remedying the
harm it caused.
Additionally, because Respondent is not “the publisher or
speaker of” the comments posted by Guers, Zimmerman, and
Dominguez, I need not examine whether those statements
would have violated Section 8(b)(1)(A) if they had, in fact,
been made by Respondent. Of course, neither Guers, Zimmer-
man, nor Dominguez is a respondent in this proceeding, and the
Government has not alleged that any of them is a labor organi-
zation within the meaning of Section 2(5) of the Act.
Moreover, because the complaint does not allege that Guers,
Zimmerman, and Dominguez possessed either real or apparent
authority to speak on Respondent’s behalf, I need not and do
not consider whether they were Respondent’s agents and make
no findings in that regard. However, even apart from Section
230 of the Communications Decency Act of 1996, I do not
believe that any reasonable person reading the comments post-
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed by Guers, Zimmerman, and Dominguez would mistake them
for the Respondent’s own pronouncements.
Respondent used its Facebook page to create a forum for free
discussion. It had just as much right to do so as any other per-
son, enterprise, or organization. Anyone familiar with the In-
ternet would recognize immediately that such a forum wel-
comes robust and unfettered discussion—some might call it “no
holds barred discussion”—and would not reasonably assume
that the views expressed by posters necessarily were those of
the host.
For these reasons, I recommend that the Board dismiss the
unfair labor practice allegations arising from complaint subpar-
agraphs 6(a)(1), (2), and (b).
Complaint Subparagraph 6(c)
Complaint subparagraph 6(c) concerns statements allegedly
made by Respondent’s vice president, Michael Cornelius, on
May 20, 2012, at the Union’s monthly membership meeting in
Phoenix. It alleges that Respondent, by Cornelius (1) threat-
ened employees with bodily injury for refusing to participate in
Respondent’s strike against the Employer, and (2) threatened
employees with unspecified retaliation because they cooperated
with the National Labor Relations Board in the investigation of
an unfair labor practice charge against Respondent. Complaint
paragraph 7 alleges that this conduct violated Section
8(b)(1)(A) of the Act. Respondent denies these allegations.
The Acting General Counsel’s posthearing brief identifies
more precisely the conduct alleged in complaint subparagraph
6(c). The brief states, in part, as follows:
During Respondent’s monthly membership meeting on May
20, 2012, Cornelius expressed to Respondent’s members Re-
spondent’s opinion that the unfair labor practice charge filed
by Weigand against Respondent on April 6, 2012 completely
lacked merit. Cornelius then explained to the attendees that
the NLRB agent in charge of the investigation had requested
Respondent to provide the NLRB with copies of posts on
[Respondent’s Facebook page]. Cornelius also informed the
membership that someone had printed out copies of posts on
[Respondent’s Facebook page] and handed them to Weigand,
who in turn had submitted the posts to the NLRB.
During the May membership meeting, Cornelius made the
following threats:
I’m not giving them access to our Facebook page. I will take
it down and I will deactivate it before that happens. I gave
you guys that page so that you can have the ability to talk
amongst yourselves, free of anybody else—in my opinion,
you have to have a reasonable expectation of privacy on that
page. You have to believe that you could speak freely on
there, that I’m not going to judge you based on what you said,
that somebody’s not going to go file a charge against you for
what you say on there. To me, it is a private page and if any-
body in here is the one who shared what was on that page, I
think you should be ashamed of yourself. Whoever did it
should be ashamed of themselves. There’s really no merit to
his case. First of all, it’s—the only thing that he has any evi-
dence to is the grievances. We post grievance reports to show
we’re processing a grievance.
At the very least, a threat must refer in some way to some
unwanted action to be taken or some adverse consequence to be
inflicted if the threatened person does not act or refrain from
acting in a certain manner. To be a “threat,” a statement need
not identify the specific reprisal contemplated, but a statement
which does not convey any notion of reprisal or force can hard-
ly be called “threatening.” However, I can find nothing in the
material quoted above which suggests any kind of reprisal or
which indicates that the speaker contemplated any retaliatory
action. Cornelius’ words do not, or at least do not in any way
obvious to me, match the language in either complaint subpara-
graphs 6(c)(1) or (2).
In considering the Government’s arguments, I will follow the
order they appear it the Acting General Counsel’s brief and
begin with those related to complaint subparagraph 6(c)(2).
The Acting General Counsel offers the following argument
concerning why Cornelius’ words constitute an unlawful threat:
In the context of Cornelius’s expression to the membership
that a member provided copies of [Respondent’s Facebook
page] posts to [Charging Party] Weigand, who in turn provid-
ed them to the NLRB, Cornelius’s admonition to its mem-
bers—that whomever provided Weigand with copies of the
posts should be “ashamed” of himself and themselves—is a
coercive threat because it equated members’ cooperation in
the pending NLRB investigation of Weigand’s unfair labor
practice charge against Respondent with unfavorable reper-
cussions. See Auto Workers Local 235 (General Motors
Corp.), 313 NLRB 36, 41 (1993) (publicly humiliating union
member at union meeting because member had testified at
NLRB trial unlawful).
Thus, the allegation in complaint subparagraph 6(c)(2), that
Respondent “threatened employees with unspecified retalia-
tion,” boils down to the claim that Cornelius violated the Act
by saying that “whomever provided Weigand with copies of the
posts should be ‘ashamed’ of himself and themselves. . . .”
Although the brief uses the words “unfavorable repercussions,”
it does not explain how any of Cornelius’ words mentioned or
even alluded to the possibility of retaliation. They don’t. To
call Cornelius’ words a violative “threat” requires imagination
untethered to the case law.
Moreover, the cited Auto Workers Local 235 case is inappo-
site. In that case, the official presiding at a union meeting had
excoriated a specific member for filing an unfair labor practice
charge resulting in the union spending money to defend itself.
When the union member tried to reply, the official told him to
sit down or be thrown out. Nothing like that happened in the
present case. Cornelius did not identify any person, and did not
single anyone out for rude or abusive treatment.
The test of whether a statement would reasonably tend to co-
erce an employee in the exercise of protected concerted activi-
ties is an objective one, requiring an assessment of all the cir-
cumstances in which the statement is made. Electrical Workers
Local 6 (San Francisco Electrical Contractors), 318 NLRB
109 (1995). Applying such a standard, and considering all the
circumstances surrounding the statement, I conclude that what
Cornelius said would not reasonably tend to coerce an employ-
ee in the exercise of protected concerted activities.
AMALGAMATED TRANSIT LOCAL 14333 (VEOLIA TRANSPORTATION SERVICES) 267
Complaint subparagraph 6(c)(1) alleges that, at this same
May 20, 2012 meeting, Respondent threatened employees with
bodily injury for refusing to participate in the strike. The Act-
ing General Counsel’s brief explains this allegation as follows:
Respondent further violated the Act at the same May 20, 2012
membership meeting when Cornelius told the members pre-
sent that he approved of members who threatened on [Re-
spondent’s Facebook page] to beat up employees who crossed
the picket line:
Just like what was said in here. It is reasonable to say that if I
say that the person crossed the line, and is a piece of crap, and
I would love nothing more than to beat him up, although I’m
not going to, but you’re bitching about it, a lot of people use
that to vent, and you should feel free to say that, and the day
that you lose that belief that it is no longer private, I’m delet-
ing it, because you have to know that it’s private.
In essence, Cornelius condoned his own and members’ use of
[Respondent’s Facebook page] to threaten physical harm to
employees who crossed the picket line. An equivalent scenar-
io would be if Cornelius announced, with or without a wink,
to members at Respondent’s membership meeting that alt-
hough he thought that it should be okay to beat up members
who crossed the picket line, he himself would not do it. Cor-
nelius’ forced reservation that he would not engage in the
conduct that he is recommending does not temper the coer-
civeness of his threat of physical violence. Furthermore, the
degree of coerciveness of Cornelius’ threat is increased be-
cause he is advocating that it should be appropriate for him-
self, Respondent’s Vice President or Financial Secretary, to
threaten bodily harm on [Respondent’s Facebook page] to
employees who crossed Respondent’s picket line.
Applying an objective standard, I cannot conclude that any
reasonable person would understand Cornelius’ statement in the
way the Acting General Counsel contends. The Government’s
reasoning assumes the fact it must prove. Indeed, the following
sentence rests on more than one such unsupported assumption:
“Cornelius’ forced reservation that he would not engage in the
conduct that he is recommending does not temper the coercive-
ness of his threat of physical violence.”
Considering all the circumstances and Cornelius’ statement
as a whole, no reasonable listener would conclude that he was
recommending violent conduct or that he had made a “threat of
physical violence.” Equally unsupported is the assertion that
Cornelius was “advocating that it should be appropriate for
himself . . . to threaten bodily harm. . . .” It is true that Cor-
nelius said that he would “love nothing more than to beat him
up, although I’m not going to,” but at most, that statement only
admits that Cornelius might take pleasure in such a violent act.
It certainly does not amount to “advocating that it would be
appropriate” for him to do so.
A reasonable listener would recognize the difference be-
tween a statement which admits a strong emotion and a state-
ment indicating that a speaker considered it appropriate to act
on the emotion or intended to do so. Neither Cornelius’ words
alone, nor the total context in which he spoke them, affords
reason to believe he would translate the emotion into action.
Perhaps in certain circumstances, a reasonable person would
be placed in fear by a speaker’s admission of anger. Those
circumstances might include the speaker’s posture, demeanor
and tone of voice, and whether there were any past instances in
which the same speaker had lost his temper. The record reveals
no such circumstances. A listener would have no reason to
believe that Cornelius’ statement meant anything other than the
face value of the words Cornelius said, and those words specif-
ically stated, “I’m not going to.”
Moreover, the Board has found far harsher comments not to
constitute a violation of Section 8(b)(1)(A). See, e.g., Letter
Carriers Local 3825 (Postal Service), 333 NLRB 343 (2001).
Additionally, if Cornelius’ expression of emotion was not an
unfair labor practice, neither was his encouraging others to be
similarly frank.
In sum, I conclude that Cornelius’ statements at the May 20,
2012 meeting did not violate Section 8(b)(1)(A). Therefore, I
recommend that the Board dismiss the allegations raised by
complaint subparagraph 6(c).
Complaint Subparagraph 6(d)
Complaint subparagraph 6(d) alleges that sometime in mid-
March 2012, Respondent, by Dennis Paulson, Arturo Suastegui,
and Michael Riley, threatened employees with less favorable
representation because employees refused to participate in Re-
spondent’s strike against the Employer. Paulson, Suastegui,
and Riley are members of Respondent’s executive board and
were “strike team leaders.” The complaint alleges that they
made such threats at the Employer’s “North Garage” facility in
Phoenix. Respondent has denied the allegations.
To establish these allegations, the Government relies, in part,
on the testimony of Cynthia Bowden, a busdriver in the bar-
gaining unit who chose to cross the picket line and work. She
testified that during the strike, in mid-March 2012, as she was
pulling her bus out of the Employer’s facility, she saw Dennis
Paulson on the picket line:
He was saying something to the effect of, “You still have
time, park the bus, come join us. If you continue, we won’t
be able to represent you, help you.” That was about it. And
then just the screams of, you know, scab and stuff like that.
She also testified that on a different occasion, about a week
after the strike ended, she saw Paulson speaking with other
employees in the dispatch area of the Employer’s North Garage
facility. According to Bowden, she overheard Paulson tell the
other employees, “We won’t represent the scabs.”
Based upon my observations of the witnesses, I conclude
that Bowden testified truthfully to the best of her recollection.
Because of her demeanor as a witness, I conclude that her tes-
timony is reliable. To the extent Bowden’s testimony conflicts
with that given by any other witness, I credit Bowden.
The Government also relies on the testimony of Charging
Party Weigand, who also crossed the picket line and worked
during the strike. He testified that as he was driving into the
Employer’s parking lot during the strike, he saw Paulson on the
picket line. Weigand testified that Paulson “said something to
the effect that we would not be covered—or represented, I
should say, by the Union. If we get in trouble—again, I’m
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
paraphrasing, but you get the meaning that if we get in trouble,
they weren’t going to represent us.”
Based on my observations of Weigand’s demeanor as a wit-
ness, I conclude that his testimony is credible. To the extent
that it conflicts with that of other witnesses, I credit Weigand.
Busdriver George Martinek testified that he worked during
the strike and described an occasion when Paulson was on the
picket line with a bullhorn. According to Martinek, he was
about 10 feet away from Paulson when Paulson, using the bull-
horn, said, “Put back the bus. Come join us on the line. We’ll
forget that you tried to come to work. The Union won’t protect
you,”
Martinek also testified that, during the strike, Respondent’s
executive board member, Michael Riley, on the picket line,
similarly said, “The Union’s not going to protect you. Put back
the bus and join us on the line.” According to Martinek, Riley
was not using a bullhorn when he made that statement, but
Martinek estimated that Riley had been less than 10 feet away.
According to Martinek, another member of Respondent’s
executive board, Arturo Suastegui, made similar comments on
the picket line: “Arturo was standing a few feet further back
from Michael Riley and yelling, ‘Put back the bus. Do not go
against the Union, then we’ll protect you.’”
Martinek also described a statement made by Suastegui
about 5 days after the strike. Martinek testified that Suastegui
was in the dispatch area of the Employer’s facility and that
about 12 other bargaining unit employees were also in the area:
Q. What is it that you heard Arturo say?
A. Just before he said, “The Union will not represent
any of the scabs,” they were talking about how the Union
will not protect him and, “Let’s hand out the old contract
to him. Let’ not talk to him.”
Q. Was Arturo directing any of that toward you?
A. No.
Q. Approximately how far away from you was Arturo
when you heard him say—make these comments?
A. Five feet away.
Another witness, Hayden Scheider, also testified that Paul-
son told nonstriking employees, “We don’t have to represent
you. We’re not going to represent you.” This corroboration
buttresses my conclusion that the testimony of Bowden and
Weigand should be credited.
Paulson and Suastegui denied the statements attributed to
them by Bowden, Weigand, and Martinek. (Paulson, however,
did admit using a megaphone to shout obscenities at the em-
ployees who crossed the picket line.) Riley did not testify.
To the extent that the testimony of Paulson and Suastegui
conflicts with that of Bowden and Weigand, I have credited
Bowden and Weigand for the reasons discussed above. Like-
wise, from Martinek’s demeanor as a witness, I conclude that
his testimony should be credited over that of Paulson and
Suastegui.
Having found that Paulson, Riley, and Suastegui made the
statements attributed to them, I must determine whether those
statements should be imputed to Respondent. The answer to
that question depends on whether they are the Respondent’s
agents within the meaning of Section 2(13) of the Act, which
Respondent denies.
Paulson was elected to Respondent’s executive board in Jan-
uary 2012, after having served as a union steward for about 1-
1/2 years. There is an apparent inconsistency in the testimony
Paulson gave regarding his duties as executive board member,
and this conflict within his testimony gives me further reason to
doubt its reliability.
Near the beginning of his testimony, on direct examination,
Paulson said that he had not represented bargaining unit em-
ployees in grievance proceedings: “No, I don’t even know how
to do one.” However, Paulson’s testimony on cross-
examination indicates that he is deeply involved in such mat-
ters:
Q. Mr. Paulson, as an executive board officer, you re-
ceive money for expenses from the Union, is that correct?
A. I don’t get what you’re saying.
Q. Okay. You, the Union pays some of your expenses
as an executive board officer, correct?
A. No, not that I’m aware of.
Q. Do you receive any payment of any sort from the
Union?
A. When I do, if I have to do something.
Q. Okay. For example—
A. If it’s Union business.
Q. Yes, and I’m referring to Union business. For ex-
ample, what, what are some of the common things that
you do as an executive officer where you’ll be reimbursed
by the Union for it?
A. If I have to do a hearing on, during my run and I
have to go and do a hearing, someone has to pay me.
Q. And when you say, “Do a hearing,” you mean rep-
resent—
A. Basically the same thing that you’re doing, but I’m
doing it to them.
Q. Right. So you’re, you’re representing an individual
who has been accused of some wrong doing by the Com-
pany, is that right?
A. Yes.
Q. Okay. And usually how long are those hearings?
A. It can go for ten minutes, it can go for hours.
Q. Okay. And what do you get, what do you get paid
for or how much do you get paid for representing individ-
uals at those hearings?
A. I get my run time.
Q. And what is that?
A.Whatever, however long is what I get paid for.
Q. Okay. So you get paid the same amount as if you
were doing your normal job?
A. Yes.
Paulson’s testimony that he represents employees in hearings
that can last 10 minutes or “can go for hours,” appears difficult
to reconcile with the testimony he volunteered when asked
about his role in grievance processing: “I don’t even know how
to do one.” This seeming inconsistency raises some doubt
about the reliability of other parts of his testimony. Moreover,
Paulson’s “don’t even know how to do one” claim is somewhat
AMALGAMATED TRANSIT LOCAL 14333 (VEOLIA TRANSPORTATION SERVICES) 269
hard to accept at face value considering that Paulson served as a
union steward for 1-1/2 years before being elected to the execu-
tive board.
Additionally, in the testimony excerpted above, when asked
if Respondent paid some of his expenses, Paulson answered,
“Not that I’m aware of.” Latter in the cross-examination, Paul-
son gave the following testimony:
Q. Mr. Paulson, do you get, do you get paid an
amount equal to Union dues each month, don’t you?
A. Like a reimbursement?
Q. Yes.
A. Yes.
Q. So you pay dues, but the Union reimburses you for
those dues?
A. Not the full amount though.
Q. What amount?
A. I have $55. I get about $46.
Q. $46 back?
A. Yeah.
Q. And that’s every month?
A. Yeah.
Q. And was that the case between January and March
of 2012?
A. I believe so.
It is quite possible that Paulson did not regard this monthly
reimbursement as “expenses,” which would explain why he
answered that he was not aware of receiving any payment from
Respondent for expenses. In any event, it is clear that Paulson
did receive some remuneration from Respondent for his service
as an executive board member.
In addition to representing employees accused of wrongdo-
ing, Paulson’s service as an executive board member also in-
cluded dealing with the Employer’s scheduler, who decided
which bargaining unit employees would be assigned to drive
which routes. Employees had the contractual right to bid on at
least some of these assignments. Each week, Paulson took
these bids to the scheduler.
Paulson also had certain duties associated with the strike. At
the inception of the strike, Paulson called between 50 and 100
union members to inform them of the strike and encourage
them to participate in picketing. Paulson testified that on the
picket line itself he would “[j]ust get people motivated for do-
ing the strike, picket back and forth, you know, chant a little
bit, whatever. And then I usually go sit down.”
The Board applies an objective standard in determining
whether an individual is an agent. The same basic standard
applies whether the principal is an employer or a union. In
deciding whether someone is an agent for an employer, the
Board asks whether the alleged agent’s position and duties, and
the context in which the conduct occurs, establish that employ-
ees would reasonably believe that the employee in question was
reflecting company policy and speaking and acting for man-
agement. Albertson’s, Inc., 344 NLRB 1172 (2005). When the
principal is a labor organization, the analogous test is whether
the putative agent’s position and duties, and the context of the
conduct, would create the reasonable belief that the individual
was reflecting union policy and speaking and acting for the
union.
In Teamsters Local 705 (Pennsylvania Truck Lines), 314
NLRB 95, 95 at fn. 1 (1994), the Board found that a steward
was the union’s agent where the steward informed new em-
ployees about union dues and fees, obtained dues checkoff and
initiation forms from new employees, settled disputes before
the grievance stage, and, during the strike, supervised the pick-
eting, kept picketing schedules and lists of the picketing em-
ployees, and informed employees that they were supposed to
picket on their regular shifts.
In the present case, Paulson’s picketing-related duties were
not so comprehensive as those of the steward in Teamsters
Local 705, supra, but he was extensively involved in represent-
ing employees accused of wrong-doing. Unlike the steward in
Teamsters Local 705, who resolved problems at the pregriev-
ance stage, Paulson actually represented employees at hearings.
Therefore, I conclude that employees reasonably would believe
that he was speaking and acting for the Respondent when he
said that Respondent would not represent employees who did
not go on strike. In this regard, Paulson’s past service repre-
senting employees gave his “won’t represent” statements par-
ticular credence.
Moreover, in determining whether employees reasonably
would believe that someone is speaking or acting as an agent
for someone else, the Board considers all the circumstances
from the perspective of the employees. Doing so leads me to
conclude that those who heard Paulson’s remarks reasonably
would believe he was speaking for the Union. See Teamsters
Local 886 (United Parcel Service), 354 NLRB 370 (2009).
Further, I conclude that Paulson’s statement restrained and
coerced employees in violation of Section 8(b)(1)(A). The
Board has held it unlawful for a union to inform employees that
it will not represent them in grievance proceedings unless they
are members. American Postal Workers (Postal Service), 310
NLRB 599 (1993). Just as Section 7 of the Act protects em-
ployees’ rights to refrain from union membership, it also pro-
tects their right to refrain from union activity, which includes a
strike.
The testimony of Arturo Suastegui establishes that he, too, is
a member of Respondent’s executive board and previously
served as one of Respondent’s stewards. His duties as an exec-
utive board member are very similar to Paulson’s, and include
representing employees in hearings. For the same reasons dis-
cussed above with respect to Paulson, I conclude that employ-
ees reasonably would believe that Suastegui was speaking for
Respondent when he communicated that Respondent would not
represent those who did not participate in the strike.
Michael Riley did not testify. Although the record indicates
that he also was a member of Respondent’s executive board, it
does not establish the extent of his duties related to the repre-
sentation of bargaining unit employees. Based on the present
record, I conclude that the Government has not established that
Riley was an agent with real or apparent authority to speak on
behalf of the Respondent. (In that regard, I also conclude that
the record does not prove the agency status of James Washing-
ton, Dwayne Handy, and Sebastran Aldama, also alleged by the
complaint, as amended, to be Respondent’s agents.) However,
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the statements of Paulson and Suastegui suffice to establish the
violation alleged in complaint subparagraph 6(d).
Respondent argues that Paulson’s statements were de mini-
mus and that its subsequent actions demonstrate that it was, in
fact, willing to represent all employees regardless of whether
they participated in the 6-day strike. However, requiring Re-
spondent to post a notice acknowledging that it will represent
all employees without regard to their protected activities cer-
tainly would serve to dispel any lingering doubt that Respond-
ent would do so.
REMEDY
Having found that Respondent violated Section 8(b)(1)(A) of
the Act, I recommend that the Board order it to cease and de-
sist, and to post the notice to members set forth in the Appen-
dix.
CONCLUSIONS OF LAW
1. The Respondent, Amalgamated Transit Union, Local Un-
ion No. 1433, AFL–CIO, is a labor organization within the
meaning of Section 2(5) of the Act, and an exclusive repre-
sentative, within the meaning of Section 9(a) of the Act, of a
unit of employees of Veolia Transportation Services, Inc.
Phoenix Division, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent restrained and coerced employees in the bar-
gaining unit described above in the exercise of rights guaran-
teed in Section 7 of the Act, in violation of Section 8(b)(1)(A)
of the Act, by threatening that employees who failed to partici-
pate in its strike against the Employer would receive less favor-
able representation.
3. Respondent did not violate the Act in any other manner al-
leged in the complaint.
[Recommended Order omitted from publication.]