Graphic Communications Conference/International Brotherhood of Teamsters Local Union No. 735-S (Bemi

National Labor Relations Board - Board Decisions

Jun 5, 2020

369 N.L.R.B. 97 (N.L.R.B. 2020)

369 NLRB No. 97
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Graphic Communications Conference/International
Brotherhood of Teamsters Local Union No. 735‒
S and Bemis Company, Inc. Case 04‒CB‒215127
June 5, 2020
DECISION AND ORDER
BY CHAIRMAN RING AND MEMBERS KAPLAN AND
EMANUEL
On February 1, 2019, Administrative Law Judge David
I. Goldman issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel and the Charging Party each filed cross-excep-
tions and a supporting brief.
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 rulings, find-
ings,1 and conclusions2 only to the extent consistent with
this Decision and Order.3
We adopt the judge’s finding that the Respondent vio-
lated Section 8(b)(1)(A) of the Act by posting a memo on
the union bulletin board threatening to blacklist members
from employment opportunities if they “turned in” fellow
union members, i.e., reported misconduct by coworker un-
ion members to the Employer. We also adopt the judge’s
finding that the Respondent, through Union Vice Presi-
dent Kevin Davidovich, violated Section 8(b)(1)(A) by
threatening employee Michael Samsel with reprisals in re-
sponse to Samsel’s complaint about hostile notes being
left at his workspace.4 For the reasons stated below, how-
ever, we reverse the judge’s dismissal of the allegations
that the Respondent violated Section 8(b)(1)(A) by threat-
ening employee Joseph Stasko with reprisals for reporting
alleged misconduct by Union President Dominic De-
Spirito and violated Section 8(b)(2) and (1)(A) by attempt-
ing to cause the Employer to discipline Stasko.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard 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.
2 We have amended the judge’s conclusions of law consistent with
our findings herein.
3 We shall modify the judge’s recommended Order to conform to our
findings and to the Board’s standard remedial language, and in accord-
ance with our recent decision in Danbury Ambulance Service, Inc., 369
NLRB No. 68 (2020). We shall substitute a new notice to conform to
the Order as modified.
DISCUSSION
Bemis Company, Inc. (the Employer) manufactures
bread bags at its West Hazelton, Pennsylvania facility.
Since 1993, Graphic Communications Conference/Inter-
national Brotherhood of Teamsters Local Union No. 735‒
S (the Respondent) has represented the facility’s produc-
tion, maintenance, and warehouse employees as their ex-
clusive collective-bargaining representative.
Around December 14, 2017, an employee reported to
the Employer that a coworker, Union President DeSpirito,
had been verbally harassing employee—Stasko on an on-
going basis since September 2017. In response, the Em-
ployer immediately suspended DeSpirito and launched an
investigation, which, among other things, involved indi-
vidually interviewing employees and taking statements
from them regarding DeSpirito’s conduct. Press assistant
employees Samsel and Stasko participated by giving state-
ments to human resources. On January 18, 2018, the Em-
ployer discharged DeSpirito.5
A. Protected Activity
As an initial matter, we find that Stasko engaged in pro-
tected activity when he participated in the Employer’s in-
vestigation of Union President DeSpirito and provided a
statement to the Employer regarding his alleged miscon-
duct. The Board has held that employees have a protected
right to participate in the machinery of the grievance and
arbitration process. See Cement Workers D‒357 (South-
ern Portland Cement), 288 NLRB 1156, 1157‒1158
(1988); Oil Workers Local 7‒103 (DAP, Inc.), 269 NLRB
129, 130 (1984). This includes the right to provide wit-
ness statements, including those against fellow members,
that are foreseeably part of the grievance process. See Ce-
ment Workers D‒357, above at 1156‒1157; Oil Workers
Local 7‒103, above at 130.6 Here, it would have been
foreseeable to Stasko that the Employer’s investigation of
DeSpirito for allegedly verbally harassing him would lead
to discipline—DeSpirito had already been suspended be-
fore the investigation began—and that a grievance would
4 The General Counsel contends that the judge failed to specifically
find that Davidovich’s comment to Samsel that Union President Dominic
DeSpirito told him “to go after the rats” also violated Sec. 8(b)(1)(A). In
finding the violation, however, the judge properly addressed the entirety
of the allegation, which included the “go after the rats” comment. More-
over, the additional finding the General Counsel seeks would not mate-
rially affect the remedy.
5 At the hearing, the Respondent’s representative stated that the Re-
spondent was challenging DeSpirito’s discharge through an arbitration
process that was then ongoing.
6 See also Sheet Metal Workers Local 550 (Dynamics Corp.), 312
NLRB 229, 234 (1993) (Employees have a protected right “to cooperate
with management in the investigation of employee misconduct which
might lead to discipline, at least where a grievance has been, or . . . is
likely to be filed.”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
likely be filed.7 Indeed, at the time of the hearing, the Re-
spondent asserted that it was, in fact, challenging De-
Spirito’s discharge through the arbitration process. Ac-
cordingly, we find that Stasko’s participation in the inves-
tigation and provision of a witness statement against De-
Spirito constituted protected activity.8
B. Threat of reprisal
On or about December 18, 2017, shortly after DeSpirito
was suspended, Stasko and Samsel were seated at a table
in the press department breakroom. According to Stasko’s
credited testimony, Union Secretary‒Treasurer Lynn An-
drews
came right to me and started yelling with her finger in
my face about 12, 14 inches from my nose telling me . . .
that she is going to get to the bottom of it. How could
we do this to Dominic? And she doesn’t know what’s
going on and she wanted to—she was going to conduct
her own investigation.
The incident lasted about 30 to 45 seconds.
The judge found that Andrews’ December 18 confron-
tation with Stasko did not violate Section 8(b)(1)(A) be-
cause Andrews’ threat—that the Respondent would con-
duct its own investigation of DeSpirito’s suspension—was
merely a statement of the Respondent’s intent to investi-
gate the matter. The judge reasoned that conducting an
investigation of a disciplinary issue constitutes “a basic
and legitimate function of a union.” Accordingly, he con-
cluded that “[t]he ‘threat’ of a union investigation into an
employee’s suspension does not reasonably tend to re-
strain or coerce other employees,” and that Andrews’ an-
ger and finger wagging did “not transform the incident
into an unlawful threat.”
We disagree. Section 8(b)(1)(A) of the Act makes it an
unfair labor practice for a union or its agents to restrain or
7 See Sheet Metal Workers Local 550, above at 234 fn. 10 (finding
that employees could reasonably anticipate that a grievance would be
filed where “the subject of the Employer’s questioning was conduct of a
high ranking union officer” and that officer had already been suspended).
8 In addition, the Board has held that a union violates Sec. 8(b)(1)(A)
when it disciplines an employee for reporting a work-rule infraction by
another employee if the disciplined employee is under a duty to make
such reports. Operating Engineers Local 513 (Ozark Constructors), 355
NLRB 145 (2010), enf. denied 635 F.3d 1233 (D.C. Cir. 2011), and cases
cited therein. Here, the judge found that the Employer called Stasko to
the human resources office to interview and provide a statement about
DeSpirito’s conduct. See Teamsters Local 439 (University of the Pa-
cific), 324 NLRB 1096, 1098 (1997) (finding that union’s discipline of
member for performing his “employer-assigned tasks” of reporting mis-
conduct was unlawful), enfd. 175 F.3d 1173 (9th Cir. 1999).
Although the United States Court of Appeals for the District of Co-
lumbia Circuit denied enforcement in Operating Engineers Local 513 on
the ground that the Board furnished no basis for its finding that the em-
ployee who reported the work-rule infraction in that case was engaged in
concerted activity, 635 F.3d at 1235, it also recognized that under
coerce employees in the exercise of rights protected by the
Act. Under Section 8(b)(1)(A), a union agent’s subjective
intent is irrelevant. Rather, the appropriate test is
“whether the remark can reasonably be interpreted by the
employee as a threat.” Consolidated Bus Transit, Inc., 350
NLRB 1064, 1066 (2007), enfd. per curiam 577 F.3d 467
(2d Cir. 2009). Here, Stasko—a bargaining unit member
and the alleged target of DeSpirito’s harassment—had just
exercised his protected right to provide a witness state-
ment against DeSpirito under circumstances that made it
likely a grievance over DeSpirito’s discipline would be
filed. In this context, Andrews’ accusatory language and
gestures coupled with her promise to “get to the bottom of
it” would be reasonably interpreted not as a general ex-
pression of the Respondent’s intent to investigate, but as a
personalized threat to hold Stasko accountable for his role
in DeSpirito’s discipline. Certainly, we agree with the
judge that the Respondent here had a right to investigate
any disciplinary proceedings against DeSpirito. But An-
drews referred only to “her own investigation” and did so
while sharply singling out an individual who played a cen-
tral role in the Employer’s probe. For these reasons, a rea-
sonable listener would have construed the totality of An-
drews’ outburst not as a benign expression of the Re-
spondent’s intent to fulfill its representative duties, but ra-
ther as a suggestion that adverse action could be taken
against Stasko for participating in the Employer’s pro-
cess.9 Accordingly, we reverse the judge and find that the
Respondent violated Section 8(b)(1)(A).
C. Attempt to Cause Discipline
On the morning of January 25, 2018, Union Secretary-
Treasurer Andrews observed Stasko walking across the
press department floor without his required noise
Supreme Court and Board precedent, invoking a right grounded in a col-
lectively bargained agreement is concerted activity. See NLRB v. City
Disposal Systems Inc., 465 U.S. 822, 832 (1984) (“[W]hen an employee
invokes a right grounded in the collective-bargaining agreement, he does
not stand alone. Instead, he brings to bear on his employer the power
and resolve of all his fellow employees.”); Interboro Contractors,
Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967).
Here, we have found that by participating in the Employer’s investiga-
tion, Stasko was exercising his right to participate in the contractual
grievance procedure. Accordingly, he was engaged in protected con-
certed activity under City Disposal and Interboro. Cf. Operating Engi-
neers Local 513, 635 F.3d at 1236 (noting that Board “explicitly de-
cline[d] to rely on City Disposal”).
9 See, e.g., Teamsters Local 391, 357 NLRB 2330, 2330 (2012) (find-
ing Sec. 8(b)(1)(A) violation in the absence of express threat where state-
ment would have been reasonably interpreted to “‘suggest unpleasant re-
percussions’” against a unit member for participating in Board pro-
cesses) (quoting Auto Workers Local 235 (General Motors Corp.), 313
NLRB 36, 41 (1993)).
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 3
protective gear, known as earmuffs.10 Andrews reported
Stasko’s safety violation to supervisors of the Employer
as well as the bargaining unit safety advocate, Denise Eis-
ley. Andrews had raised safety concerns to the Employer
in the past, but this was the first time that she reported an
employee for a safety violation. After Andrews’ report,
Eisley told Stasko to wear his earmuffs, and Stasko com-
plied.11
Later that same day, the Employer’s environmental
health and safety manager, Carl Passler, conducted a
safety committee meeting for one of the four voluntary
safety committees in the facility. Between 12 and 14 em-
ployees were present, including Stasko. Pizza was served
and, at some point during the meeting, Stasko used the ra-
zor blade that he uses to cut film for work to cut a slice of
pizza. Using a work blade on food and using the blade
without a protective “cut glove” violated safety protocols,
and Michelle Hernandez, an employee present at the meet-
ing, reported the incident to Passler. The Employer did
not take disciplinary action at the time of the incident, and
Passler testified that he would not have issued discipline
for a first offense of that nature.
Hernandez reported the incident to Secretary-Treasurer
Andrews. That afternoon, Andrews filed a complaint re-
garding the incident on the Employer’s 1–800 corporate
compliance hotline. In the evening, Andrews left a
voicemail for Passler, again reporting the incident and ex-
pressing her concern that he had not acted.12
The next day, January 26, Andrews called Human Re-
sources Manager Leslie Pienkowski; during the call, An-
drews was upset and stated that she wanted an investiga-
tion conducted into the pizza-cutting incident. Andrews
further complained that the Employer was giving Stasko
preferential treatment and that the Employer had disci-
plined people for less.13 Following Andrews’ reports,
Passler instructed Eisley to speak to Stasko regarding the
incident.
The judge dismissed the General Counsel’s allegation
that the Respondent violated Section 8(b)(2) and (1)(A) by
10 The judge credited Stasko’s testimony that he had briefly removed
his earmuffs in order to have a conversation. The Employer’s environ-
mental health and safety manager, Carl Passler, indicated that the re-
moval of earmuffs is a violation of safety protocols; he also testified that
it was commonplace in the workplace for an employee to remove his
earmuffs.
11 It was longstanding practice for a safety advocate or manager to
direct employees to put on their safety protection gear rather than report-
ing the violation. The record does not contain any evidence of an em-
ployee receiving discipline for a safety violation prior to the events at
issue here.
12 In her voicemail, Andrews stated:
Hello, this is Lynn Andrews calling. I heard what happened at the
safety meeting with a gentleman taking a razor blade out and cutting
the pizza, putting it back in his knife to go cut film. And you said
attempting to have Stasko disciplined by the Employer for
the two safety violations. The judge premised his conclu-
sion solely on his finding that Andrews did not actually
attempt to have Stasko disciplined. First, the judge deter-
mined that Andrews did not make an express demand or
request that Stasko be disciplined. Second, the judge
found that disciplinary action against Stasko by the Em-
ployer would not have been a “foreseeable consequence”
of Andrews’ reports. In so finding, the judge emphasized
that there was no possibility that the Employer would have
disciplined Stasko in light of its longstanding practice of
counseling employees rather than imposing discipline for
isolated safety violations. The judge concluded that
“[r]eporting an employee for a violation for which he will
not be disciplined is not an attempt to have him disci-
plined.”14 Accordingly, the judge dismissed the allegation
without reaching the question of whether the Respond-
ent’s actions were unlawfully motivated.15
Section 8(b)(2) of the Act makes it an unfair labor prac-
tice for a union or its agents to cause or attempt to cause
an employer to discriminate against an employee in viola-
tion of Section 8(a)(3). To establish a violation, direct ev-
idence that the union expressly demanded the discrimina-
tion is not necessary. M. W. Kellogg Constructors, Inc.,
273 NLRB 1049, 1051 (1984), remanded on other grounds
806 F.2d 1435 (9th Cir. 1986). A union can be found to
have caused or attempted to cause discrimination if there
is sufficient evidence to support a reasonable inference of
a union request or a union‒employer understanding. Id.16
Accordingly, the Board has held that this requirement has
been satisfied where the union’s conduct “warrants the in-
ference of an implied request” that an employee be disci-
plined.17
Contrary to the judge, we find that the General Counsel
has established that the Respondent attempted to have
Stasko disciplined by the Employer. Indeed, even absent
an express request for discipline, the record makes clear
that Andrews’ entire course of conduct was directed to-
ward one goal: having the Employer take formal
nothing, absolutely nothing. He used a razor blade between his fingers
and didn’t have any protection on, and you let that happen at a safety
meeting? Unbelievable.
13 The judge credited Andrews’ testimony that she “wanted some-
thing done.”
14 The judge then concluded that Andrews had filed the safety com-
plaints simply to “mak[e] a point” that the Employer had enlisted a cer-
tain group of employees in the termination of DeSpirito and that those
employees were being protected by the Employer.
15 The judge also dismissed the General Counsel’s allegation that An-
drews’ reporting of Stasko amounts to a derivative violation of Sec.
8(b)(1)(A). We address this allegation below.
16 See also Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323
NLRB 1042, 1044 (1997).
17 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
disciplinary action against Stasko. Despite the fact that
the longstanding practice was for both the Employer and
Andrews to address safety lapses through informal coun-
seling, Andrews repeatedly suggested that the Employer’s
informal handling of the minor incidents involving Stasko
did not go far enough. Significantly, the Employer’s
safety representative was present when the pizza-cutting
incident took place and had already determined that
Stasko’s conduct did not warrant discipline. Nonetheless,
Andrews lodged three separate complaints regarding the
incident—to the corporate compliance hotline, to Safety
Director Passler, and to Human Resources Manager Pien-
kowski. Finally, not only did Andrews specifically com-
plain to Passler that his reaction to Stasko’s conduct was
inadequate, she expressly requested that Pienkowski initi-
ate an investigation of the incident, arguing that “we’ve
disciplined people for less.” In this context, the only rea-
sonable interpretation of Andrews’ statement that she
“wanted something done” is that she wanted the Employer
to impose discipline on Stasko. See, e.g., Food & Com-
mercial Workers Local 454 (Central Soya), 245 NLRB
1295, 1297 (1979) (finding that union president implicitly
attempted to cause discipline where she mentioned a dis-
ciplinary rule and an employee’s escape from conse-
quences under that rule), enfd. mem. 625 F.2d 1012 (5th
Cir. 1980).
We agree with the General Counsel that the issue of
whether Stasko would actually be disciplined by the Em-
ployer is separate from the question whether Andrews’ ac-
tions could be reasonably construed as a request for disci-
pline outside of the Employer’s existing protocols. An-
drews, in her multiple complaints against Stasko and her
escalating course of reporting, clearly sought to portray
Stasko as a repeat offender whose actions merited sanction
rather than mere counseling. In our view, Andrews’ deci-
sion to file complaints via the corporate compliance hot-
line and a human resources manager—rather than just the
Employer’s safety manager—and her explicit request for
an investigation also suggest a disciplinary aim rather than
one solely related to safety. For all of these reasons, we
conclude that the Respondent, through Andrews, at-
tempted to cause Stasko to be disciplined.
Having found that Andrews attempted to cause Stasko
to be disciplined, we next consider whether the
18 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); see, e.g., Paperworkers Local 1048, above
at 1044 (applying Wright Line analytic framework to alleged discrimina-
tion by a union).
19 See Graphic Communications Local 1‒M (Bang Printing), 337
NLRB 662, 678 (2002) (applying duty-of-fair-representation framework
to alleged discrimination by a union).
20 Caravan Knight Facilities Mgmt., Inc., 362 NLRB 1802, 1804‒
1805 (2015) (applying both frameworks to determine whether a union
Respondent acted unlawfully in doing so. In assessing
whether a union has violated Section 8(b)(2), the Board
has applied both the analytical framework set forth in
Wright Line18 and the duty-of-fair-representation frame-
work.19 For the reasons that follow, we find the violation
under either standard.20
To satisfy his initial Wright Line burden, the General
Counsel must show that the employee engaged in pro-
tected activity, the union had knowledge of that activity,
and the union bore animus towards the employee’s pro-
tected activity. See Sheet Metal Workers Local Union 85
(Logistics Co.), 368 NLRB No. 50, slip op. at 8 (2019).
Inferences of discriminatory motive may be warranted un-
der the totality of the circumstances of a case. Paperwork-
ers Local 1048, 323 NLRB at 1044. If the General Coun-
sel meets his burden, the burden shifts to the union to show
that it would have taken the same action absent the em-
ployee’s protected activity. Security, Police & Fire Pro-
fessionals of America (SPFPA) Local 444, 360 NLRB
430, 436 (2014).
For the reasons set forth above, we find that Stasko en-
gaged in protected activity by providing a witness state-
ment in the Employer’s investigation of DeSpirito under
circumstances that made it likely a grievance over De-
Spirito’s discipline would be filed, and the record shows
that the Respondent had knowledge of this activity. In ad-
dition, we find that the record includes ample evidence of
the Respondent’s animus toward Stasko’s protected activ-
ity. As discussed above, Andrews—before she reported
Stasko’s safety violations—unlawfully threatened Stasko
with reprisals for participating in the Employer’s investi-
gation. Likewise, as stated above, the Respondent vio-
lated the Act by posting a memo in which it threatened to
blacklist union members who “turn[ed] in fellow union
members.”21 In this context, it is clear that Andrews’ ef-
forts to compel Stasko’s discipline were the consumma-
tion of the Respondent’s repeated threats to inflict conse-
quences on those who participated in the Employer’s in-
vestigation.22
Even apart from the Respondent’s unlawful conduct,
Andrews’ words and actions surrounding her requests
evince her animus toward Stasko’s conduct. Signifi-
cantly, Andrews indicated that she lodged the complaints
against Stasko out of her frustration that certain co-
has violated Sec. 8(b)(2)), enf. denied on other grounds sub nom. United
Auto Workers v. NLRB, 844 F.3d 590 (6th Cir. 2016).
21 Tellingly, Andrews testified that she was responsible for putting
the memo on display.
22 See, e.g., O.K. Trucking Co., 298 NLRB 804, 809 (1990) (finding
animus where respondent carried out previous threats of reprisal by ac-
tually imposing discipline).
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 5
workers “get away with things,” specifically those “who
have testified or who have participated in the investigation
against . . . DeSpirito.” Indeed, the judge found that An-
drews filed the complaints to “mak[e] a point” about those
employees. All of this evidence sufficiently establishes
that Stasko’s protected conduct was a motivating factor in
Andrews’ decision to file her complaints. Notably, An-
drews complained about the Employer’s supposedly in-
sufficient response to Stasko’s conduct only days after the
Employer discharged DeSpirito.23 In addition, Andrews
had never previously reported an employee for a safety vi-
olation; she did so here repeatedly, and to multiple
sources, in spite of the relatively mild nature of the under-
lying conduct and the fact that, consistent with its existing
protocol, the Employer had already declined to impose
discipline for either incident. For all of these reasons, we
find that the General Counsel has met his initial burden
under Wright Line.
To the extent that the Respondent argues, without elab-
oration, that Andrews reported Stasko solely for commit-
ting safety violations, it has offered no credible evidence
that she would have filed these reports even in the absence
of Stasko’s protected activity, and thus the Respondent
has not met its Wright Line defense burden. Therefore,
applying Wright Line, we find that the Respondent vio-
lated Section 8(b)(2) by attempting to cause the Employer
to discipline Stasko.
We reach the same result applying the duty-of-fair-rep-
resentation framework. When a union causes or attempts
to cause an employee to be disciplined, there is a rebutta-
ble presumption that it acted unlawfully because that
“‘demonstrates its power to affect the employees’ liveli-
hood in so dramatic a way as to encourage union member-
ship among the employees.’” Graphic Communications
Local 1‒M, 337 NLRB at 673 (quoting Operating Engi-
neers Local 478 (Stone & Webster), 271 NLRB 1382,
1382 fn. 2 (1984)). A union may rebut the presumption
that it acted unlawfully by demonstrating that its action
“was necessary to the effective performance of its function
of representing its constituency.” Operating Engineers
Local 18 (Ohio Contractors Assn.), 204 NLRB 681, 681
(1973), enf. denied on other grounds 496 F.2d 1308 (6th
Cir. 1974).
Here, the Respondent has failed to rebut the presump-
tion of unlawful conduct that arose when Andrews sought
23 An employee reported the allegations against DeSpirito on Decem-
ber 14, 2017, the Employer discharged DeSpirito on January 18, 2018,
and Andrews reported Stasko on January 25 and 26, 2018. Evidence of
suspicious timing supports an inference of animus. Paperworkers Local
1048, above at 1044.
24 See Teamsters Local 705 (Pennsylvania Truck Lines), 314 NLRB
95, 95‒96 fn. 4 (1994); Laborers Local 373 (Arrow Enterprises), 282
NLRB 347, 348‒349 (1986). In finding that the Respondent
to have Stasko disciplined. The Respondent has made no
attempt—at the hearing or via briefing—to demonstrate
that Andrews’ reporting of either incident was necessary
to the representation of its constituency. Accordingly, we
find that it has breached its duty of fair representation in
violation of Section 8(b)(2) by reporting Stasko for his
conduct. See Service Employees Local 1877 (American
Building Maintenance), 345 NLRB 161, 166 (2005) (find-
ing that union did not rebut presumption where it failed to
present a defense).
Finally, consistent with the General Counsel’s com-
plaint, we find that the Respondent independently violated
Section 8(b)(1)(A) by retaliating against Stasko for engag-
ing in protected activity.24
AMENDED CONCLUSIONS OF LAW
1. Bemis Company, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Respondent, Graphic Communications Confer-
ence/International Brotherhood of Teamsters Local Union
No. 735‒S, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent, on or about December 18, 2017,
violated Section 8(b)(1)(A) of the Act by threatening em-
ployee Joseph Stasko with reprisals because of his in-
volvement in the Employer’s investigation into the Union
President’s misconduct.
4. The Respondent, on or about January 22, 2018, vio-
lated Section 8(b)(1)(A) of the Act by posting a message
threatening to blacklist members from employment oppor-
tunities.
5. The Respondent, on or about January 22, 2018, vio-
lated Section 8(b)(1)(A) of the Act by threatening em-
ployee Michael Samsel with reprisals, including destruc-
tion of property, in response to Samsel’s complaint about
hostile notes calling him a “rat” being left at his work-
place.
6. The Respondent, on or about January 25, 2018, vio-
lated Section 8(b)(2) of the Act by attempting to cause the
Employer to discipline Stasko, and Section 8(b)(1)(A) of
the Act by restraining or coercing Stasko in the exercise
of rights guaranteed him by Section 7 of the Act.
independently violated Sec. 8(b)(1)(A), we do not rely on the judge’s
characterization of the 8(b)(1)(A) violation as “derivative.” See Na-
tional Maritime Union (Texas Co.), 78 NLRB 971, 985‒986 (1948)
(finding no suggestion in the legislative history of the Taft-Hartley Act
that a union would derivatively violate Sec. 8(b)(1)(A) where its viola-
tion of Sec. 8(b)(2) “constituted merely an attempt to cause the employer
to discriminate”), enfd. 175 F.2d 686 (2d Cir. 1949), cert. denied 338
U.S. 954 (1950).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
7. The unfair labor practices set forth above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
ORDER
The National Labor Relations Board orders that the Re-
spondent, Graphic Communications Conference/Interna-
tional Brotherhood of Teamsters Local Union No. 735‒S,
West Hazelton, Pennsylvania, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Threatening employees with reprisals for providing
a witness statement to the Employer for use in a potential
grievance proceeding.
(b) Threatening employees with loss of employment
opportunities in retaliation for engaging in protected ac-
tivity.
(c) Threatening employees with reprisals in response to
complaints that they have received messages implying
they are disloyal and/or hostile to the Respondent.
(d) Attempting to cause the discipline and/or discharge
of any employee because of his or her protected activity.
(e) 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
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, remove
from its files, and ask the Employer to remove from the
Employer’s files, any reference to the unlawful reports of
misconduct against Joseph Stasko, and within 3 days
thereafter notify Stasko in writing that it has done so and
that it will not use the reports against him in any way.
(b) Post as its West Hazelton, Pennsylvania facility
copies of the attached notice marked “Appendix.”25 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 4, after being signed by the Respond-
ent’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 em-
ployees and members are customarily posted. In addition
to physical posting of paper notices, notices shall be dis-
tributed electronically, such as by email, posting on an in-
tranet or internet site, and/or other electronic means, if the
25 If the facility involved in these proceedings is open and staffed by
a substantial complement of employees, the notices must be posted by
the Respondent, and delivered to the Regional Director for posting by
the Employer, if it wishes, within 14 days after service by the Region. If
the facility involved in these proceedings is closed due to the Corona-
virus Disease 2019 (COVID-19) pandemic, the notices must be posted
and delivered within 14 days after the facility reopens and a substantial
complement of employees have returned to work, and the notices may
not be posted until a substantial complement of employees have returned
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, de-
faced, or covered by any other material.
(c) Deliver to the Regional Director for Region 4 signed
copies of the notice in sufficient number for posting by the
Employer at its West Hazelton, Pennsylvania facility, if it
wishes, in all places where notices to employees are cus-
tomarily posted.
(d) Within 21 days after service by the Region, file with
the Regional Director for Region 4 a sworn certification
of a responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to com-
ply.
Dated, Washington, D.C. June 5, 2020
______________________________________
John F. Ring, Chairman
______________________________________
Marvin E. Kaplan, Member
________________________________________
William J. Emanuel, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
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 vi-
olated Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
to work. Any delay in the physical posting of paper notices also applies
to the electronic distribution of the notice if the Respondent customarily
communicates with its members by electronic means. 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.”
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 7
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 ac-
tivities.
WE WILL NOT threaten you with reprisals for providing
a witness statement to the Employer for use in a potential
grievance proceeding.
WE WILL NOT threaten you with loss of employment op-
portunities in retaliation for engaging in protected activity.
WE WILL NOT threaten you with reprisals in response to
complaints that you have received messages implying that
you are disloyal and/or hostile to the Union.
WE WILL NOT attempt to cause your discipline and/or
discharge because of your protected concerted activity.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask the Employer to re-
move from the Employer’s files, any reference to our un-
lawful reports of misconduct against Joseph Stasko, and
WE WILL, within 3 days thereafter, notify him in writing
that we have done so and that we will not use the reports
against him in any way.
GRAPHIC COMMUNICATIONS CONFERENCE/
INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL
UNION NO. 735‒S
The Board’s decision can be found at
www.nlrb.gov/case/04-CB-215127 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor
Relations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273‒1940.
Lea F. Alvo-Sadiky, Esq., for the General Counsel.
Ira H. Weinstock, Esq. (Law Offices of Ira H. Weinstock, P.C.),
of Harrisburg, Pennsylvania, for the Respondent.
Timothy C. Kamin, Esq. (Ogletree, Deakins, Nash, Smoak &
Stewart, P.C.), of Milwaukee, Wisconsin, for the Charging
Party.
DECISION
INTRODUCTION
DAVID I. GOLDMAN, ADMINISTRATIVE LAW JUDGE. This case
involves allegations by the government that a union unlawfully
threatened employees and unlawfully attempted to have the em-
ployer discipline an employee. As described more fully herein,
I find that the union unlawfully threatened employees in two of
three instances alleged by the government. I dismiss the allega-
tions relating to the union’s alleged attempt to have the employee
disciplined.
STATEMENT OF THE CASE
On February 20, 2018, the Bemis Company, Inc. (Bemis or
Employer) filed an unfair labor practice charge alleging viola-
tions of the Act by the Graphic Communications Conference/ In-
ternational Brotherhood of Teamsters Local Union No. 735–S
(Union), docketed by Region 4 of the National Labor Relations
Board (Board) as Case 04–CB–215127. The charge was
amended on March 6, 2018, amended for a second time on May
29, 2018, and a third time on June 18, 2018.
Based on an investigation into this charge, on June 25, 2018,
the Board’s General Counsel, by the Regional Director for Re-
gion 4 of the Board, issued a complaint and notice of hearing in
this case alleging violations of the National Labor Relations Act
(Act). The Union filed an answer denying all violations of the
Act on June 29, 2018.
A trial in this matter was conducted on October 22, 2018, in
Hazelton, Pennsylvania. Counsel for the General Counsel, the
Employer, and the Union filed posttrial briefs in support of their
positions by December 3, 2018.
On the entire record, I make the following findings, conclu-
sions of law, and recommendations.
JURISDICTION
At all material times, Bemis has been a corporation with an
office and place of business in West Hazelton, Pennsylvania, and
has been engaged there in the production and distribution of
packaging used for the food, consumer products, healthcare, and
other industries. During the past year, Bemis, in conducting its
business operations described above, purchased and received at
its West Hazelton facility goods valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Pennsylvania.
At all material times, Bemis has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the
Act. At all material times the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act. Based on the
foregoing, I find that this dispute affects commerce and that the
Board has jurisdiction of this case, pursuant to Section 10(a) of
the Act.
UNFAIR LABOR PRACTICES
Background
Bemis manufactures bread bags at its West Hazelton, Penn-
sylvania facility. Since and before Bemis acquired the facility in
1993, the Union has represented the facility’s production,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
maintenance, and warehouse employees.1 At the time of the
hearing, Human Resources Manager Leslie Pienkowski esti-
mated that there were approximately 350 union-represented em-
ployees working at Bemis. The current collective-bargaining
agreement between the Union and Bemis was effective August
15, 2016, and is scheduled to terminate no earlier than August
14, 2020.
Around December 14, 2017, an employee reported to manage-
ment that a coworker—Union President Dominic DeSpirito—
had been verbally harassing another employee, Joseph Stasko,
on an ongoing basis, since September 2017. The Employer im-
mediately suspended DeSpirito and launched an investigation,
which, among other things, involved individually calling em-
ployees to the human resources office, where Bemis officials in-
terviewed the employees and took statements from them about
DeSpirito’s conduct.
On January 18, 2018, Bemis terminated DeSpirito. At the
hearing in this matter, the Union represented that it is challenging
the termination through an arbitration process that was ongoing
at the time of the hearing in this matter.
Bemis bargaining unit employee Michael Samsel works as a
press assistant in the press room. In mid-December, the day that
he gave a statement to Bemis about DeSpirito’s conduct, Samsel
was exiting the Bemis parking lot after work when DeSpirito
called Samsel on his cell phone. DeSpirito asked Samsel “what
was going on in the plant,” and Samsel replied that “we were
getting called in about things going on with him.” DeSpirito told
Samsel that he had been suspended. Samsel told DeSpirito that
he was not going to lie for him and DeSpirito told Samsel that he
did not want or expect him to do so. Then DeSpirito told Samsel
that “when he gets back, that nobody was safe, they better watch
their back, and he wasn’t going to do anything for them.”2
Andrews Confronts Stasko in the Breakroom
Joseph Stasko works at Bemis as a press assistant. Stasko tes-
tified that in the middle of December, a day or two after De-
Spirito had been suspended, he was seated at a table in the press
department breakroom with fellow press assistant Michael Sam-
sel. The Union’s secretary‒treasurer, Lynn Andrews, entered the
press department breakroom and came right to me and started
yelling with her finger in my face about 12, 14 inches from my
nose telling me . . . that she is going to get to the bottom of it.
How could we do this to Dominic? And she doesn’t know what’s
going on and she wanted to—she was going to conduct her own
investigation.
1 At all relevant times Bemis has recognized the Union as the exclu-
sive collective-bargaining representative of the following unit of em-
ployees, a unit appropriate for the purposes of collective bargaining
within the meaning of Sec. 9(b) of the Act:
All hourly paid production, maintenance and warehouse employees
of the Company at its West Hazleton, Pennsylvania plant, exclud-
ing professional, administrative, supervisory, office and plant cler-
ical, receiving clerk, plant laboratory technicians, guards, salespeo-
ple, office porters, and truck-drivers.
2 I credit Samsel’s credibly offered and unrebutted testimony. I rec-
ognize that this incident was not in Samsel’s pretrial affidavit. But I ac-
cept Samsel’s explanation that “I may not have recalled it at the time I
went to Philly [to give the affidavit].” In addition to being unrebutted, I
Stasko described Andrews as “loud” and “upset.” The whole
incident took about 30–45 seconds, and then Andrews left.
Other than dating the incident as occurring after Christmas or
early in January, Samsel corroborated Stasko’s account of this
incident. He testified that Andrews entered the breakroom and
“basically got in Joe’s [Stasko’s] face” saying “how could he do
this to Dominic, that they were going to do their own investiga-
tion to get to the bottom of what was going on.” Samsel testified
that Andrews “pointed her finger in [Stasko’s] face very aggres-
sively” and that “her mood was upset, agitated.”
Andrews testified about this incident, saying that it occurred
on December 18, 2017. According to Andrews she went to find
Stasko after “Dominic told me that I need to go and see these
people, that, you, know, that if I could talk to them myself about
the investigation.” Andrews testified that on break she left her
machine in the bag department and went to the press area where
she asked the supervisor “who’s Joe Stasko?” Andrews was told
that he was in the breakroom, so she entered to speak to him.
However, according to Andrews, she simply asked Stasko “Joe,
do you mind if I talk to you tomorrow,” and he did not reply.
According to Andrews, nothing further was said by her to
Stasko. Andrews testified that she began talking to another em-
ployee who asked her some questions and she was “not in that
breakroom not even a minute.” Andrews denied waving her fin-
ger at Stasko. She suggested that any finger-waiving occurred
when she was talking to the other employee, and she allowed that
“I talk with my hands.”
I credit Samsel and Stasko’s credibly offered testimony as to
this incident. Both testified with credible demeanor—their ac-
counts appeared to avoid exaggeration and there did not appear
to be any artifice in their responses to questions. Their accounts
were consistent, with the exception that Samsel dated the inci-
dent as occurring in late December or early January, but that does
not, in my estimation, undermine the credibility of the account.3
To the contrary, it supports my feeling that their testimony was
unscripted. Andrews, on the other hand, was evasive at times
and her testimony repeatedly lapsed into indirection and digres-
sion. Her account also seems unlikely: admittedly sent by De-
Spirito to talk to Stasko, she simply let the matter drop when she
found him. I credit Stasko and Samsel’s account of the conver-
sation over Andrews’. I do find that the incident occurred on or
about December 18, 2017. This is consistent with both An-
drews’ and Stasko’s recollection. Samsel recalled the incident
occurring later in the month, but it is more plausible that it
note that Samsel’s account included segments favorable to DeSpirito—
such as DeSpirito’s allowance that he did not want or expect Samsel to
lie for him—that only enhance Samsel’s credibility about the incident. I
note that testimony about this incident was offered only as background.
(Tr. 164.) This incident is not alleged as a violation of the Act.
3 “Dates, and even sequence, are notoriously the subject of testimo-
nial confusion without substantially affecting credibility determinations
relating to disputed conversations.” L. D. Brinkman Southeast, 261
NLRB 204, 209 fn. 5 (1982) (citations omitted); Hearst Corp., 281
NLRB 764, 779 (1986) (“obvious inaccuracy of dates provided for cer-
tain events . . . appears to have been no more than a confusion as to de-
tails”) (internal quotations omitted), enfd. mem. 837 F.2d 1088 (5th Cir.
1988); NLRB v. Longshoremen Local 10, 283 F.2d 558, 562–563 (9th
Cir. 1960).
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 9
occurred immediately after the investigation of DeSpirito and his
suspension.4
Posting of The Communicator Memo
On January 22, 2018, the Union posted the following memo,
under the heading of The Communicator—the name for the
Teamster’s Graphic Communications Conference newspaper:
ATTENTION
The events that have happened are very troubling. We as [ ]
Union Brothers and Sisters do not turn each other in if we have
an issue[ ] we go to a steward or a board member. Turning in
fellow Union members is a violation of the Union by laws and
could result in fines and black listed from all union jobs. It has
also come to the Union attention that people are writing on
walls and contacting the people that went to the company in-
stead of doing the right thing. Please do not do this or jeopard-
ize your job. This issue as most have stated is unfair. We will
fight this as we fight all issues. Do not let this Company divide
this union or pit brother and sister against each other.
Thank you
Dominic DeSpirito
President GCC/IBT Local735-s
The parties stipulated that this memo was posted by the Union
for less than 24 hours on the union bulletin board and at the
breakroom entrance.
Incident with Union Vice President Davidovich
Samsel testified that in late January 2018, as he was ending a
shift, the union vice president, Kevin Davidovich, approached
him and asked Samsel if HR Manager Pienkowski had been “on
the floor shaking hands and congratulating people that Dominic
got fired.” Samsel denied that Pienkowski had done this, but
used the opportunity to
Ask [Davidovich] about the stuff going on, on my press, told
him I didn’t appreciate the things that were being found or left
at my press. They were leaving notes. They were leaving a
fake rat, like homemade paper rats around the work area.
Davidovich testified and, although he contended that Samsel
approached him, and not vice versa, he confirmed that he and
Samsel discussed the “little artifacts” that were being left around
his machine “that people are finding offensive.”
At this point, however, Samsel and Davidovich’s accounts of
events diverge in significant ways. Samsel testified that Da-
vidovich replied that
it could get much worse. And I asked him what he meant by
that. He said, they can settle like the old days, caving in skulls,
smashing lockers, people’s personal properties and cars. I told
4 As stated, above, I credit Samsel and Stasko. I do so notwithstand-
ing my concerns with other parts of Samsel’s testimony, discussed be-
low. I note in this regard that credibility findings need not be all-or-
nothing propositions. Indeed, “nothing is more common in all kinds of
judicial decisions than to believe some and not all” of a witness' testi-
mony. NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir.
1950), revd. on other grounds 340 U.S. 474 (1951); Daikichi Sushi, 335
NLRB 622, 622 (2001), enfd. 56 Fed. Appx. 516 (D.C. Cir. 2003).
him that he was the vice president of the Union and he
shouldn’t be talking that way. That’s not how it’s supposed to
go, which he replied, it’s going to get worse. And I said, well,
why? He said, because Dominic’s told him to go after the rats.
Davidovich testified that he told Samsel,
I don’t know who’s doing it or where it’s coming from, I can’t
stop it. And then I proceeded to say, well, you know, thank-
fully, it’s not like in years past where people’s toolboxes were
getting vandalized, lockers were being caved in, or cars were
being keyed.
According to Davidovich, that’s where the conversation
ended. Davidovich denied that he told Samsel that he or anyone
would engage in physical violence against him or cause property
damage to anyone, or that DeSpirito had instructed him to harass
employees who reported misconduct.
This dispute raises some difficult credibility issues. I found
Samsel to have an engaging and credible-seeming demeanor.
But nonetheless, there are some issues in his testimony that are
significant.
Samsel gave two prior statements about this incident—first,
an affidavit to the NLRB investigators on February 27, 2018, ap-
proximately 1 month after the incident. But before that, the day
after the incident, Samsel gave an unsworn but signed statement
to the Employer providing his account of the incident, complete
with quotation marks identifying what Davidovich reportedly
said to him.
Much about the three accounts (his testimony and the two
prior statements) is consistent—that is to say, in many respects
the prior statements do not impeach, they corroborate Samsel’s
testimony. One would expect differences in three separate ac-
counts of a single event, and for the most part the differences are
unremarkable, minor, and plausible. But there are two excep-
tions.
Most significant, in my view, is the fact that unlike Samsel’s
testimony and his pretrial affidavit—in which Samsel claimed
that Davidovich told him that in the old days things were settled
with “caving in skulls”—in the statement Samsel gave to the
Employer the day after the incident there was no claim that Da-
vidovich mentioned “caving in skulls,” or skulls at all, or made
any reference to bodily violence against persons. This is a highly
significant omission.5
It strikes me as very unlikely that someone providing a state-
ment intended to report a threatening event would overlook and
omit a reference to physical assault or “caving in skulls.” The
statement given by Samsel the day after the incident recorded
Davidovich talking about the “old days” when there was prop-
erty damage initiated against “rats,” including the “caving in of
things,” but there is no mention of assault against a person or
5 Jencks v. United States, 353 U.S. 657, 667 (1957) (“Every experi-
enced trial judge and trial lawyer knows the value for impeaching pur-
poses of statements of the witness recording the events before time dulls
treacherous memory. Flat contradiction between the witness' testimony
and the version of the events given in his reports is not the only test of
inconsistency. The omission from the reports of facts related at the trial,
or a contrast in emphasis upon the same facts, even a different order of
treatment, are also relevant to the cross-examining process of testing the
credibility of a witness' trial testimony”).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
bodily damage. But a month later, when he gives his pretrial
affidavit, and then nine months later, when he testifies, the list of
transgressions Davidovich is said to have threatened now in-
cludes the “caving in [of] skulls.” This broadening of the threat
to include threats of physical assault raises some doubts about
Samsel’s testimony.
Not as serious, but nonetheless of note, is the fact that while
Samsel testified that Davidovich told him that “they could settle
things like in the old days, caving in skulls, smashing lockers,
people’s personal properties and cars,” in his day-after-the-inci-
dent statement to the employer Samsel wrote that Davidovich
told him “Lucky this isn’t settled like the old days, stealing peo-
ple’s personal belongings, caving things in, sabotage of work ar-
eas, and so on.” In his pretrial affidavit, Samsel’s account omit-
ted any reference to the “old days” but averred that Davidovich
stated, “it could get a lot worse, we could start damaging per-
sonal property, lockers, and cars, and caving in skulls.” Thus, in
the day-after-the-incident statement to the Employer, the recita-
tion of potential damage is mediated by phrasing stating that
Samsel is fortunate that scores are no longer settled that way—
in the trial testimony and pretrial affidavit the mediating phrase
is gone—Davidovich is flatly saying that these things could hap-
pen, not that Samsel is lucky that they no longer happen. It is
one further example of the elaboration of Samsel’s account over
time. I think the day-after statement undercuts Samsel’s trial
version. Whether or not the difference avoids the threatening
implications of Davidovich’s point is another matter altogether,
but in terms of the credibility of Samsel’s trial testimony, it is
something I consider.
We now have two points of Samsel’s testimony—one serious,
one less so—in which Samsel’s testimonial and affidavit account
paint Davidovich’s comments in a more negative light than what
he first reported the day after it occurred.6
Samsel’s trial testimony must be considered in light of these
differences in his pretrial statement. And of course, in light of
Davidovich’s testimony. Notably, while denying any threats, or
that he said that DeSpirito was telling him to harass or “go after
the rats,” or that things could “get much worse,” Davidovich’s
testimony corroborates the essential core of Samsel’s testimony:
after Samsel reported that he had been subject to a series of “rat”
notes and messages, Davidovich responded by saying that he
could not stop it but fortunately, (“thankfully”) it is not like in
years past where employees were subjected to significant prop-
erty damage, of which Davidovich provided several examples.
However, Davidovich’s demeanor while testifying was not
exemplary. He avoided eye contract with questioners, even while
6 I note that I reject the Respondent’s suggestion that Samsel’s testi-
mony should be discredited for a third reason—based on the fact that his
pretrial affidavit does not specifically reference Davidovich’s reported
comment that DeSpirito “told him to go after the rats.” It does allude to
it—the affidavit says that DeSpirito was telling union board members to
harass us”—and, moreover, the day-after-the-incident statement to the
employer specifically mentions the instruction from DeSpirito “to harass
rats.” Thus, while all three (the live testimony, the affidavit, and the
next-day statement given to the employer) are phrased differently, they
all consistently have Davidovich relaying the same point. I do not dis-
count Samsel’s testimony on this point.
the oath was being administered, something that, in my experi-
ence, is highly unusual. I do believe that his account of the inci-
dent is modified in an effort to put it in a more benign light.
Taking all these factors together, my best judgment and find-
ing is that Samsel’s account should be (and is) credited—but
without the reference to physical assault on a person (“caving in
skulls”) and Davidovich’s statement was not “they can settle like
the old days” but, rather, something to the effect of “they don’t”
or (as Davidovich testified) “thankfully it’s not like in years
past.” Thus, my finding is that conversation was to the following
effect:
Davidovich said “it could get much worse.” Samsel asked him
“what he meant by that.” Davidovich said “thankfully it’s not
settled like the old days, smashing lockers, people’s personal
properties and cars.” Samsel told him that he was the vice pres-
ident of the Union and he shouldn’t be talking that way.
“That’s not how it’s supposed to go,” to which Davidovich re-
plied, “it’s going to get worse. Samsel said, “well, why?” He
said, because Dominic’s told him “to go after the rats.”
Andrews’ Reporting of Stasko
On January 25, Andrews repeatedly approached management
about purported misconduct by Stasko.
The morning of January 25, Andrews came to Pienkowski’s
office and said that the previous evening, as she was in her car
getting ready to leave the Employer’s parking lot, she noticed
Stasko staring at her from approximately two parking spaces
away. Stasko denied the incident. Bemis dropped the matter.7
Later that day, Andrews was walking to the bag department
office and spotted Stasko walking across the floor to press 23
where he worked. He did not have his “earmuffs” on—noise
protective gear that employees are required to wear. Andrews
immediately reported Stasko to the supervisors and the bargain-
ing unit safety advocate, Denise Eisley, in the press office. An-
drews did not use Stasko’s name but agreed that “they knew” she
was “referring to him.” As Andrews explained it: “So I saw him,
and I just went in and I said, you know, he doesn't have his ear-
muffs on. None of you say anything, and that was pretty much
it.”
Andrews had made safety complaints in the past, but this was
the first time that she had reported an employee for a safety vio-
lation.
Stasko testified that he had removed his earmuffs only briefly
in order to have conversation, something he and the plant’s en-
vironmental health and safety manager, Carl Passler, described
as commonplace, but nonetheless, a violation of safety protocols.
7 At the hearing Andrews testified that when she was in her car getting
ready to leave she looked up “Stasko was standing there staring at me.”
Andrews testified that her response to seeing Stasko staring at her from
two parking spaces away was that she
almost panicked because I thought that if I say anything or do any-
thing, it’s more icing for his case.
Andrews claimed she was so upset she almost wrecked and the next
day, for the first time in 42 years, she did not want to go to work and was
late. Stasko, for his part, denied the incident. He testified that he has
“no idea where [Andrews] parks” and doesn’t know what her car looks
like.
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 11
4 or 5 minutes after Andrews reported Stasko, Eisley came out
and told Stasko to wear his hearing protection. Stasko described
that this is in keeping with what happens if someone is not wear-
ing hearing protection:
Supervision or one of the safety advocates or the safety man-
ager will come over and, you know, [tell the employee] put
your safety protection on, whether it be your glasses or your
hearing protection.
Eisley also testified that Stasko “is occasionally seen not
wearing his proper hearing protection. When I see him, I usually
will tell him about putting it in, putting it on; probably, I would
say, maybe half a dozen times I have actually told him about it.”
Eisley testified that she was unaware of Stasko, or any other em-
ployees receiving discipline for safety equipment, glasses, or
shoes, certainly not “in the last few years.”
In his testimony, the plant’s environmental health and safety
manager, Safety Manager Passler made clear that employees at
Bemis are not disciplined for such isolated violations. He testi-
fied that with regard to removing earmuffs momentarily to have
a conversation on the shop floor, while a “violation” it was not,
as longstanding matter of practice and policy, an event for which
someone would be disciplined. Passler testified that employees
are not disciplined by Bemis for not wearing hearing protection
when they are having a conversation in the plant. He has never
written someone up for not wearing protective gear. Indeed,
Passler testified that if someone is seen not wearing PPE it is
reported by supervisors and employees without naming the em-
ployee.
That same day, January 25, there was a safety committee
meeting for the A crew safety committee, one of four voluntary
safety committees in the facility. The meeting lasted 1 hour, be-
ginning at about 12 noon. The meeting was conducted by Safety
Manager Passler. Between 12 and 14 employees were present.
Pizza was served, which Passler had bought for the group.
Stasko was present, and at some point used the razor blade from
the hook knife he uses to cut film for work to cut a slice of pizza.
This was a safety violation, both for using a work blade on food
that could later be used on plastic bread bags, but also for using
the blade without a “cut glove” to protect against injury.
Passler was in the room when this incident occurred. There
was conflicting testimony as to whether Passler observed Stasko
cutting the pizza—he denied it, but an employee who was there,
Michelle Hernandez, testified that Passler observed and jokingly
commented on it. In any event, while I need not resolve that
dispute in the testimony, it is clear that Passler knew about the
incident, as Hernandez, who was upset by it, told him about it
during the meeting. No discipline or much ado at all was made
of it at the time by Passler and the meeting concluded. Passler
testified that for “a first offense like that we don’t write people
up.” Indeed, Passler testified directly that if he had witnessed
the incident “I would not have issued disciplinary action.”
8 I do not credit Passler’s assertion that Andrews asked Pienkowski
and Passler on this call “how we were going to discipline.” This was
credibly denied by Andrews (“I don’t think I said discipline because I
wouldn’t—I don’t say that”), not recounted by Pienkowski, and unmen-
tioned by Andrews in the recorded phone message or in the corporate
safety complaint she made on the issue. Andrews admitted that she was
Hernandez, who was unhappy with the “problems” that Stasko
had recently caused “between other employees,” reported the in-
cident to Andrews—her “union representative on the floor” as
there was no shop steward on that shift at that time. Hernandez
told Andrews that
management seen him do this and he’s causing all these prob-
lems between other employees, and they’re not reprimanding
him, not even verbally, that it’s not fair that he can cause prob-
lems with the Company, with other employees, and laugh it off.
That afternoon, Andrews placed a call to Bemis’ 1‒800 cor-
porate compliance hotline, a corporatewide system through
which employees can file complaints. The issue as recorded by
Bemis on the hotline call was as follows:
These girls came to me and said that they were at a safety meet-
ing and they had pizza. This gentleman that was sitting next to
Michelle took out his cut knife, took the razor blade out with
his bare fingers, cut the pizza, wiped it on his pants, put the
blade back in his knife and put it in his pocket. The safety di-
rector Carl Passler said, “I didn't see anything.” I am not al-
lowed to touch or remove the razor blade and have to use
gloves if I use the knife. This all happened right in front of the
safety director. I wonder if he is going to go cut film with that
blade because we make plastic bags for bread.
In addition, that evening, January 25, Andrews left a
voicemail for Bemis Safety Manager Passler:
Hello, this is Lynn Andrews calling. I heard what happened at
the safety meeting with a gentleman taking a razor blade out
and cutting the pizza, putting it back in his knife to go cut film.
And you said nothing, absolutely nothing. He used a razor
blade between his fingers and didn't have any protection on,
and you let that happen at a safety meeting? Unbelievable.
The next day, on January 26, Andrews called Pienkowski’s
cell phone between 9 and 10 a.m. and left a voicemail. Pienkow-
ski was in a meeting when Andrews called and after the meeting,
along with Bemis Safety Manager Carl Passler, she called An-
drews from her office. Andrews was upset. She wanted an in-
vestigation conducted into the pizza-cutting incident. Andrews
complained that Bemis was “giving him [Stasko] preferential
and that . . . we’ve disciplined people for less.” At the hearing,
Andrews credibly denied that she said that she wanted Stasko
disciplined (“I don’t think I said discipline because I wouldn’t—
I don’t say that”), but admitted only that “I wanted something
done.”8
Passler directed the plant safety advocate, bargaining unit em-
ployee Denise Eisley, to speak with Stasko and make sure that
he replaced the blade in the knife he used to cut the pizza. He
was later told by Eisley that Stasko had replaced the knife even
before she spoke with him, a point Eisley corroborated when she
testified at the hearing.
“very upset that nothing happened.” Asked whether she was upset that
he was not disciplined, Andrews replied, “Yeah, he wasn’t even told
about it.” Contrary to the assertions of the Employer (CP Br. at 17), this
is not an admission that she attempted to have Stasko disciplined, that
this was the purpose of her reporting him, or that she told Bemis so. In-
deed, the gravamen of this testimony and circumstances refutes it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
Analysis
The General Counsel and the Employer contend that the Un-
ion threatened employees in violation of Section 8(b)(1)(A) of
the Act, specifically by Andrews’ confronting Stasko in the press
area breakroom on or about December 18, 2017, by posting The
Communicator notice in the plant on January 22, 2018, and by
Davidovich’s confrontation with Samsel in the press area in late
January 2018.
In addition, the General Counsel and the Employer contend
that the Union attempted to cause the employer to discriminate
against Stasko in violation of Section 8(b)(2) of the Act, by An-
drews’ reporting of Stasko for two minor safety violations on
January 25, 2018.
I will consider each alleged violation in turn.
I. THE ALLEGED 8(B)(1)(A) THREATS PARAGRAPH 6 OF THE
COMPLAINT
Section 8(b)(1)(A) of the Act makes it an unfair labor practice
for a labor organization or its agents “to restrain or coerce . . .
employees in the exercise of the rights guaranteed in section 7.”
“Integral to the policy underlying both Section 8(b)(1)(A) and
(2) of the Act was the intent to separate membership obligations
owed by employees to their labor organizations from the em-
ployment rights of those employees.” Longshoremen, Local 13
(Pacific Maritime Association), 228 1383, 1385 (1977), enfd.
581 F.2d 1321 (9th Cir. 1978). “The policy of the Act is to in-
sulate employees' jobs from their organizational rights.” Radio
Officers' Union of the Commercial Telegraphers Union v. NLRB,
347 U.S. 17, 40 (1954).
In analyzing an alleged 8(b)(1)(A) violation, the Board applies
an objective standard that focuses on whether the union conduct
would have a reasonable tendency to restrain or coerce employ-
ees in the exercise of their Section 7 rights. Carpenters (Society
Hill Towers Owners' Assn.), 335 NLRB 814, 815 (2001), enfd.
50 Fed. Appx. 88 (3d Cir. 2002); Letter Carriers, Branch #47
(USPS), 330 NLRB 667, 667 fn. 1 (2000) (“The test for a viola-
tion of Sec. 8(b)(1)(A), however, does not depend upon an ex-
amination of a respondent's motivation. Rather, it depends on
whether or not the respondent's statement or conduct would have
a reasonable tendency to restrain or coerce an employee in the
exercise of statutory rights”); Teamsters Local 162 (American
Steel, Inc.), 255 NLRB 1230, 1233 (1981) (“the test is an objec-
tive, rather than a subjective, one and depends on whether, in the
circumstances of a given case, the probable effect of the conduct
is to restrain or coerce an employee in the exercise of his Section
7 rights”).
In this case, the General Counsel and the Employer allege that
the Union violated Section 8(b(1)(A) in three separate incidents.
1. First, the General Counsel and Employer contend that An-
drews’ December 18, 2017 confrontation—and tirade—with
Stasko in the press breakroom violates the Act. I disagree. Sec-
tion 8(b)(1)(A) was not violated by this conduct.
Andrews was angry, for sure. And wagging a finger in some-
one’s face is always objectionable in terms of manners—but nei-
ther finger-wagging nor angry confrontation is actionable under
the Act. In this case Andrews’ “threat” was to chastise the em-
ployees for turning in DeSpirito (“how could we do this to Dom-
inic”) and to announce that the Union was going to conduct
“their own investigation to get to the bottom of what was going
on.”
The Union is entitled to conduct its own investigation about
an employee’s suspension (and later) discharge. It is a core un-
ion activity. The suspension and firing of any employee, and no
less the union president, is a big deal. The Union represents De-
Spirito. And the Union is entitled to investigate the matter, all
the more so when the Employer has called numerous employees
to the office in order to develop the basis for the DeSpirito dis-
cipline. I do not think it surprising, or suspicious, or actionable,
that this would raise concern on the part of the Union. If tempers
flared, that is not surprising and does not transform the incident
into an unlawful threat.
The General Counsel’s theory is that the threat of an investi-
gation is an implicit threat to take reprisals against Stasko and/or
Samsel in a manner that affects their employment. This assumes
a lot—far too much—and serves to categorize as illegal any un-
ion expression of intent to “get to the bottom” of these events.
But getting to the bottom of an employee’s discipline is, after all,
a basic and legitimate function of a union. The “threat” of a un-
ion investigation into an employee’s suspension does not reason-
ably tend to restrain or coerce other employees.
Importantly, I think the appropriate way to review this inci-
dent is without assuming the guilt or the innocence of DeSpirito
as to the serious charges levied against him. Indeed, Andrews
and the Union are entitled to dispute, disbelieve, and contest De-
Spirito’s guilt, even if they are wrong. Even if the Union is wrong
about DeSpirito, this does not turn Andrews’ announcement that
the Union will conduct its own investigation into DeSpirito’s
suspension and discharge, and not merely rely on the Employer’s
investigation, into an independent unlawful threat of reprisal. I
dismiss paragraph 6(a) of the complaint.
2. The General Counsel and the Union contend that the Un-
ion’s January 22, 2018 posting of The Communicator message
on January 22, 2018, violated Section 8(b)(1)(A). I agree. The
Union’s notice threatens fines and “black list[ing] from all union
jobs” in retaliation for “[t]urning in fellow union members.”
While the threat to “blacklist” members from “all union jobs”
may have been intended simply to refer to barring members from
holding positions within the Union—I think the phrasing is, at
best, ambiguous, and would reasonably likely be interpreted by
members as a threat to employment. Teamsters Local 391, 357
NLRB 2330, 2330–2331 (2012) (ambiguous statement that
might have been intended as lawful request to withdraw griev-
ance is unlawful violation of Sec. 8(b)(1)(A) because reasonable
listener could conclude that statement was threatening unlawful
action). This more troublous reading, which is advanced by the
General Counsel (GC Br. at 23–24) and the Employer (CP Br. at
8), presents an obvious violation of Section 8(b)(1)(A). It is a
threat to unlawfully retaliate against members by denying them
job opportunities should they join together to complain about
working conditions in a manner that implicates another
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 13
employee. It is a threat to their employment rights and is unlaw-
ful.9
3. Finally, the General Counsel and the Employer allege that
Davidovich’s confrontation with Samsel in the press area in late
January 2018, violated Section 8(b)(1)(A). Although I have not
accepted entirely, either witness’s account, the credited version
is clearly an unlawful threat. For convenience, I repeat here the
credited version of what Davidovich told Samsel in response to
Samsel raising the “rat” paraphernalia and messages being left
near his worksite:
Davidovich said “it could get much worse.” Samsel asked him
“what he meant by that.” Davidovich said “thankfully it’s not
settled like the old days, smashing lockers, people’s personal
properties and cars.” Samsel told him that he was the vice pres-
ident of the Union and he shouldn’t be talking that way.
“That’s not how it’s supposed to go,” to which Davidovich re-
plied, “it’s going to get worse. Samsel said, “well, why?” He
said, because Dominic’s told him “to go after the rats.”
Thus, Davidovich concluded the conversation by telling Sam-
sel that DeSpirito had told him to “go after the rats,” in a conver-
sation that began with Samsel telling Davidovich about the rat
messages and figures that had been showing up in his work area.
Davidovich told Samsel that “it could get much worse,” and then
that it was “going to get worse.” In response to Samsel asking
him what he meant by “it could get much worse,” Davidovich
listed a series of property crimes that “thankfully” no longer oc-
cur. I do not believe that Davidovich was suddenly moved to
musings on discarded historical responses to unapproved em-
ployee activity. This was a not-so-veiled threat—a classic im-
plicature—less direct but no less explicit in meaning. Da-
vidovich was responding to Samsel’s complaint that he was be-
ing harassed with messages accusing him of being a “rat”—i.e.,
disloyal and/or hostile to the Union. Davidovich’s response was
to threaten further reprisals against Samsel. These threats fall
squarely within the ambit of threats that violate Section
8(b)(1)(A).10
However, I do not find and dismiss the allegation to the ex-
tent—and only to the extent—it alleges that Davidovich threat-
ened physical bodily violence. As found, his threats related to
damage to personal and company property, and other unspecified
reprisals.
II. ANDREWS’ ALLEGED EFFORT TO HAVE STASKO DISCIPLINED
PARAGRAPH 7 OF THE COMPLAINT
The General Counsel and the Employer contend that the Un-
ion, through Andrews, violated Section 8(b)(2) by attempting to
have Stasko disciplined by Bemis for two alleged safety
9 I do not reach the issue of whether, had the Respondent merely
threatened internal union discipline—such as barring of members from
positions within the Union—it would have similarly amounted to an
8(b)(1)(A) violation. See CWA Local 5795 (Western Elec. Co.), 192
NLRB 556 (1971); Transit Union Local 1225 (Greyhound Lines), 285
NLRB 1051 (1987).
10 I agree with the General Counsel that Davidovich’s threats are at-
tributable to the Union. He was vice president at the time he made the
remarks. Stasko specifically reproached him for making the remarks in
his capacity as vice president—something that Davidovich did not disa-
vow—and Davidovich even referenced his instructions from President
violations: when Andrews reported Stasko for momentarily not
wearing his ear muffs, and again when she reported him for cut-
ting the pizza with his work knife. In addition, the General
Counsel contends that this same conduct by Andrews violates
Section 8(b)(1)(A) of the Act.
Section 8(b)(2) of the Act states, in relevant part, that
[i]t shall be an unfair labor practice for a labor organization or
its agents … to cause or attempt to cause . . . an employer to
discriminate against an employee in violation of subsection
(a)(3).
There is no requirement that an 8(b)(2) violation involve co-
ercive efforts to “cause or attempt to cause” the employer to dis-
criminate. An “efficacious request” is sufficient. San Jose Ste-
reotypers’ and Electrotypers’ Union No. 120 (Dow Jones & Co.,
Inc.), 175 NLRB 1066, 1066 fn. 3 (1969); NLRB v. Jarka Corp.
of Philadelphia, 198 F.2d 618, 621 (3d Cir. 1952) (“This rela-
tionship of cause and effect, the essential feature of Section
8(b)(2), can exist as well where an inducing communication is in
terms courteous or even precatory as where it is rude and de-
manding”); Iron Workers Local 455 (Precision Fabricators),
291 NLRB 385, 387 (1988) (“statements which ‘contain direc-
tions or instructions’ . . . fall within the ‘attempt to cause’ lan-
guage of 8(b)(2)”).
Moreover, “[t]he Board has found that direct evidence of an
express demand by the Union is not necessary where the evi-
dence supports a reasonable inference of a union request” for
discrimination. Avon Roofing & Sheet Metal, 312 NLRB 499,
499 (1993). This can occur when circumstantial evidence sup-
ports the conclusion that an express request, in fact, was made.
Avon Roofing, supra at 499, 503. It can also occur when the un-
ion’s conduct warrants an inference of an implied request to dis-
criminate. See e.g., Paperworkers Local 1048 (Jefferson Smurfit
Corp.), 323 NLRB 1042, 1044 (1997) (union’s report to em-
ployer of allegation of racial harassment by employee where un-
ion had “full knowledge of the Employer’s rules concerning such
conduct and of its policy of assigning strong discipline to viola-
tors of those rules [and other indicia] . . . warrants the inference
of an implied request that [the employee] be disciplined”).
In this case, the General Counsel’s 8(b)(2) allegations must be
dismissed. Even assuming Andrews’ hostility to Stasko, there is
insufficient evidence to prove that she attempted to cause Bemis
to discriminate against Stasko.
First, in neither incident in which Andrews is alleged to have
attempted to cause Bemis to discriminate against Stasko did An-
drews explicitly request that Stasko be disciplined. Thus, there
were no “directions or instructions” to discriminate against
DeSpirito as the motivation for his remarks. As the Board explained in
Security, Police & Fire Professionals (SPFPA) Local 444, 360 NLRB
430, 436 (2014):
The Board regularly finds elected or appointed union officials to be
agents of that organization. Although the holding of elective office
does not mandate a finding of agency per se, it is persuasive and
substantial evidence that will be decisive in the absence of compel-
ling contrary evidence. [Internal case citations omitted.]
There is no contrary evidence.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
Stasko. Iron Workers Local 455, 291 NLRB at 387.
Of course, efforts to have an employer discriminate against an
employee are actionable even if indirect, so the fact that Andrews
was not explicit is not dispositive. However, for there to be a
violation of Section 8(b)(2), there must be union action from
which a violation of Section 8(a)(3) would be a foreseeable con-
sequence. SEIU, Local 87 (Able Building Maintenance Co.), 349
NLRB 408, 412 fn. 10 (2007) (“If a foreseeable consequence of
the communication is discharge, an explicit demand is not re-
quired”); Longshoremen, Local 1332 (Philadelphia Marine
Trade Assn.), 150 NLRB 1471, 1476 (1965) (there must be union
action intended to cause a violation of Sec. 8(a)(3) and “reason-
ably calculated to bring about that result”); see also, cases cited
below at fn. 11.
One thing is absolutely clear on this record—it is something
that was known by Andrews, Stasko, Eisley, Pienkowski and
Passler—and it is this: there was no chance—none—that Stasko
was going to be disciplined or have any adverse action taken
against him by Bemis for either or both of the two alleged safety
violations for which Andrews reported him.
According to Bemis’ own witnesses, the violations for which
Andrews reported Stasko were not acts for which Stasko would
be disciplined. The momentary failure to wear hearing protec-
tion is, by all evidence, a common occurrence, which, when
brought to management’s attention, results in the bargaining-unit
safety advocate, or, possibly a manager, mentioning it to the of-
fending employee and telling him or her to wear their hearing
protection. Passler was very clear on this in his testimony. In
addition, Eisley, unit employee who functioned as a safety advo-
cate, passed on safety violations to management without naming
names or with any anticipation of discipline—which again, high-
lights the nondisciplinary approach that Bemis took to minor
safety violations. Eisley testified that she has talked to Stasko a-
half-a-dozen times. There was no prospect of discipline. Stasko
seemed to confirm this as his understanding too. By all evidence
only in the most extreme case of repeated violations would an
employee even end up in the progressive disciplinary system for
these sorts of “PPE violations.” Stasko was not even close with
half-a-dozen “coachings” from Eisley. Notably, the General
Counsel is in complete agreement that there was no prospect of
discipline for this incident, pointing out (GC Br. at 33) that the
record
showed that Bemis’ policy with regards to wearing PPE was to
remind employees when they were not wearing their hearing
protection to put it on, rather than seeking to discipline them
for it.
The pizza incident was a little more unusual, but the evidence
is clear that discipline was not even a consideration—indeed, the
11 Caravan Knight Facilities Management, Inc., 362 NLRB 1802,
1805 (2015) (finding that employer’s past application of its rules meant
that union caused discharge because when union filed statement incrim-
inating employee in “major offense for which employees are subject to
discharge without warning . . . they knew full well that doing so would
in all likelihood result in Powell’s discharge. Accordingly, we find that
the Union effectively caused Powell’s discharge”); enfd. in relevant part,
844 F.3d 590 (6th Cir. 2016); Good Samaritan Medical Center, 361
NLRB 1294, 1296 (2014) (“These facts support an inference, which the
open question (that I have not resolved) is whether or not Passler
literally laughed it off with a joke. In any event, he knew about
it and took no action other than telling the bargaining unit safety
coordinator Eisley to check with Stasko to make sure he threw
the pizza-contaminated blade away. To quote Bemis’ brief (CP
Br. at 14–15), which accurately summarizes the record on these
points:
Ms. Pienkowski, Human Resources Manager, also testified
that she was not aware of any employee ever being disciplined
for that type of safety violation. (Tr. 42.) With regard to PPE,
the Company typically does not engage in formal discipline for
minor violations. (Tr. 55.) Typically, the Company will repeat-
edly coach an employee, and if there is a habitual offender, the
Company will use progressive discipline. (Tr. 55.) Mr. Passler
did request that the Safety Advocate, Denise Eisley, discuss the
issue with Mr. Stasko, which is consistent with his typical re-
sponse to such incidents. (Tr. 156.)
Ms. Eisley confirmed that she was not aware of any employees
receiving any formal discipline for minor safety violations such
as PPE violations, within at least the past few years. (Tr. 212.)
Reporting an employee for a violation for which he will not
be disciplined is not an attempt to have him disciplined.
Bemis brought this charge, alleged that the Union attempted
to cause it to discriminate, yet asserts that the incidents for which
the union reported Stasko are not offenses for which Bemis em-
ployees are disciplined. Is the contention that Union—reasona-
bly but mistakenly—believed otherwise? Absent a finding that
Andrews was totally ignorant of the management practices and
policies with regard to safety violations in a plant where she has
worked and represented employees for many years—and there is
no evidence for such a finding—it is not tenable to contend that
reporting Stasko for violations for which he will not be disci-
plined constitutes an “efficacious” attempt to have Bemis disci-
pline him.
This is a fundamental fallacy in the General Counsel’s theory.
Andrews’ and/or the Union’s hostility to Stasko is not sufficient
to prove this case. Without a finding of union “causation”—i.e.,
a finding that the union caused or attempted to cause the em-
ployer to take action against an employee—there is no case.
The General Counsel argues that “[t]he Board has found the
necessary element of causation in a union’s reporting of sup-
posed employee misbehavior to an employer.” (GC Br. at 28.)
But the General Counsel ignores that the causation finding in
such cases is rooted in and requires a finding that the union rea-
sonably would know that discipline would likely result from re-
porting the employee. This is a crucial component of an 8(b)(2)
violation based upon a finding of an implicit circumstantial un-
ion attempt to cause an employer to discriminate.11
judge drew and with which we agree, that when the Union's representa-
tives reported Legley's conduct to management, they reasonably would
have foreseen that Legley would be disciplined (at least) for violating the
workplace civility policy. . . . Based on the foregoing, we find that union
conduct caused Legley’s discharge”), enf. denied, 858 F.3d 617 (1st Cir.
2017); Security, Police & Fire Professionals (SPFPA) Local 444, 360
NLRB 430, 435 (2014) (union representative “knew that [employee]
would be removed from worksite and suffer adverse employment action”
based on union representative’s disclosures to client, thus “the element
TEAMSTERS LOCAL UNION 735‒S (BEMIS CO., INC.) 15
Here we have the diametrically opposite circumstance. Not
only did Andrews not explicitly request that Stasko be disci-
plined, she had every reason to believe that Stasko would not be
disciplined (or otherwise discriminated against) by the employer
in any way) for the reported offenses. This was right, of course.
The whole thing was kicked over to Eisley, in both cases, a
coworker “safety advocate.” It was, according to Passler and
Pienkowski, Stasko, Bemis’ posthearing brief, and the General
Counsel’s posthearing brief, Bemis’ policy not to discipline em-
ployees for such matters. This significantly, fatally in my view,
and undercuts the General Counsel’s view that it is reasonable to
interpret or infer Andrews’ actions as a true attempt to cause Be-
mis to discriminate against Stasko.
In truth, this is obvious. Andrews was making a point. One
does not have to endorse or agree with her point to recognize it.
She was raising—and she was explicit about it—her view,
shared by the Union and some employees, that Bemis had en-
listed a “certain group” of employees in the termination of De-
Spirito and that those employees were being protected by the em-
ployer. Andrews was making a point about favoritism and what
she believed was disparate treatment by the Employer of the lo-
cal union president. In the first incident, when she saw Stasko
without his protective gear she walked into the press office and
said “you know, he doesn't have his earmuffs on. None of you
say anything.” That’s it. The second incident involved more—
angry calls to the corporate safety hotline and to Passler and
Pienkowski until they called her back—but she was acting on the
urging of an angry unit employee—Hernandez—who, like An-
drews, believed that Bemis played favorites and allowed some
employees to ignore rules in front of the management without
even a reproach. This is the substance of Andrews’ complaint to
management: “This all happened right in front of the safety di-
rector”; “you said nothing, absolutely nothing. He used a razor
of causation necessary to establish a prima facie case violation of Sec.
8(b)(2) is met by the aforementioned disclosures”); Town & Country Su-
permarkets, 340 NLRB 1410, 1430 (2004) (Rongers’ “14 years as Pres-
ident of IEU taught him that Strack discharged employees for making
threats to employees or customers. . . . [H]e did not deny that his expe-
rience as IEU President showed him the likelihood that upon learning of
Peters' threat to “kick his ass” Strack would discharge her. Accordingly,
I find that by Rongers' complaint, IEU was requesting Strack to discharge
Peters for threatening him”). Nationsway Transport Service, 327 NLRB
1033, 1045 (1999) (“Even if [union representative] did not act for the
specific purpose of causing the Employer to refuse to work Noweski, he
nevertheless acted knowing that this particular result would follow. That
is sufficient causation [under 8(b)(2)]”); Paperworkers Local 1048 (Jef-
ferson Smurfit Corp.), 323 NLRB 1042, 1044 (1997) (“the Union's rep-
resentative, Rick Young, reported an allegation of racial harassment to
the Employer with full knowledge of the Employer's rules concerning
such conduct and of its policy of assigning strong discipline to violators
of those rules [along with other similar indirect indicia] warrant[ ] the
inference of an implied request that Ramsey be disciplined”).
12 I note that the General Counsel does not rely on or claim that An-
drews’ reporting of Stasko for “staring at [her]” in the parking lot the
previous evening constituted an attempt to have Stasko disciplined. An-
drews’ description of the event contains nothing that Stasko could be
disciplined for or that could reasonably be construed as “intimidation.”
Apparently, the Employer too, figured this one out (“there was no merit
found”). Andrews’ testimony that she “panicked” when she saw Stasko
“because I thought if I say or do anything, it’s more icing for his case,”
blade between his fingers and didn’t have any protection on and
you let that happen at a safety meeting? Unbelievable.” One
need not approve of Andrews’ making her point by reporting
Stasko. But in the context of Bemis’ longstanding method of
dealing with safety violations, none of this amounts to an attempt
to cause Bemis to discipline or otherwise discriminate against
Stasko.
Section 8(b)(2) is a protection for employees from union at-
tempts to leverage its power or position to have an employer dis-
criminate against employees. It is not a catch-all provision vio-
lated by any union hostility to an employee, however unjustified.
It is not a trap for a union representative who complains to man-
agement about minor but valid safety violations carrying no risk
of adverse action by the employer against the employee. Such
careful “policing” of union action—in this case, instigated by the
employer—is not within the ambit of 8(b)(2)’s prohibition. The
Board should not be drawn into such an effort. I dismiss the
8(b)(2) allegation of the complaint.12
The General Counsel also contends that Andrews’ reporting
of Stasko violates Section 8(b)(1)(A). However, the General
Counsel advances no argument for finding this to be an inde-
pendent violation of Section 8(b)(1)(A). Neither does the Em-
ployer. Rather, the General Counsel contends only (GC Br. at
29) that “[a] derivative violation of Section 8(b)(1)(A) arises
where an 8(b)(2) violation has been proven.” In the absence of
any argument from any party that Andrews’ reporting of Stasko
is an independent violation of Section 8(b)(1)(A), I decline to
reach the issue. Based on the dismissal of the 8(b)(2) allegation,
I dismiss any theory of derivative violation.13
CONCLUSIONS OF LAW
The Respondent Graphic Communications Conference/ Inter-
national Brotherhood of Teamsters Local Union No. 735–S
seems to be as close to an admission of Stasko’s nondelinquency as one
can expect. In any event, Andrews’ reporting of this incident—which
did not involve her asking for Stasko to be disciplined seems like a ham
handed, unconvincing, and sure to be disbelieved effort to lodge a com-
plaint of favoritism. I reiterate that the General Counsel does not rely on
this incident as a basis for any violation.
13 I note that while there are cases in which the Board has adopted
without comment administrative law judge findings that a derivative vi-
olation of Sec. 8(b)(1)(A) arises where an 8(b)(2) violation has been
proven (see e.g., SPFPA Local 444, 360 NLRB at 435 and Postal Work-
ers, 350 NLRB 219, 222 (2007)) there are also longstanding unreversed
Board cases holding otherwise. E.g., Plumbers Local 669 (Lexington
Fire), 318 NLRB 347, 347 fn. 4 (1995) (“It is well established that other
8(b) violations do not give rise to derivative violations of Sec.
8(b)(1)(A)”); Local 340, International Association of Bridge, Structural
and Ornamental Ironworkers (Consumers Energy Co.), 347 NLRB 578,
578 fn. 4 (2006) (reversing 8(b)(1)(A) finding based on 8(b)(2) finding
because “It is well established that other 8(b) violations do not give rise
to derivative violations of Sec. 8(b)(1)(A)”); Truck Drivers Local 705
(Pennsylvania Truck Lines), 314 NLRB 95, 95 fn. 4 (1994) (“In adopting
the judge's finding that the Respondent violated Sec. 8(b)(1)(A) and (2)
by attempting to cause and by causing the Employer to deny the discrim-
inatees’ seniority, we do not rely on the judge's characterization of the
8(b)(1)(A) violation as ‘derivative’”); National Maritime Union, 78
NLRB 971 (1948), enfd.175 F.2d 686 (2d Cir. 1949), cert. denied 338
U.S. 954 (1950). Given my conclusion that there was no 8(b)(2) viola-
tion, I need not treat with this conflict.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD16
(Union) is a labor organization within the meaning of Section
2(5) of the Act.
The Respondent, on or about January 22, 2018, violated Sec-
tion 8(b)(1)(A) of the Act, by posting a message in its publica-
tion, The Communicator, threatening to blacklist members from
employment opportunities in retaliation for reporting union
members to their employer for misconduct.
The Respondent, in or about late January 22, 2018, violated
Section 8(b)(1)(A) of the Act by threatening employee Michael
Samsel with reprisals including destruction of property in re-
sponse to Samsel’s complaint about hostile notes calling him a
“rat” being left at his workplace.
The unfair labor practices committed by the Respondent affect
commerce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist therefrom and to take certain affirmative action designed
to effectuate the policies of the Act.
The Respondent shall post an appropriate informational no-
tice, as described in the attached Appendix. This notice shall be
posted in the Respondent's offices or wherever the notices to
members are regularly posted for 60 days without anything cov-
ering it up or defacing its contents. In addition to physical post-
ing 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 communi-
cates 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. When the notice is
issued to the Respondent, it shall sign it or otherwise notify Re-
gion 4 of the Board what action it will take with respect to this
decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended14
ORDER
The Respondent Graphic Communications Conference/ Inter-
national Brotherhood of Teamsters Local Union No. 735–S
(Union), West Hazelton, Pennsylvania, its officers, agents, and
representatives, shall
1. Cease and desist from:
(a) Threatening members with loss of employment opportu-
nities in retaliation for reporting members for misconduct to their
employer.
(b) Threatening employees with reprisals in response to com-
plaints that they have received messages implying they are dis-
loyal and/or hostile to the Respondent.
(c) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act:
(a) Within 14 days after service by the Region, post at its West
Hazelton, Pennsylvania facility copies of the attached notice
marked “Appendix.”15 Copies of the notice, on forms provided
by the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in conspic-
uous places, including all places where notices to members are
customarily posted. In addition to physical posting of paper no-
tices, 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 4 signed copies of the notice in
sufficient number for posting by the Employer at its West Hazel-
ton, Pennsylvania facility, if it wishes, in all places where notices
to employees are customarily posted.
(c) Within 21 days after service by the Region, file with the
Regional Director for Region 4 a sworn certification of a respon-
sible official on a form provided by the Region attesting to the
steps that the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed insofar
as it alleges violations of the Act not specifically found.
Dated, Washington, D.C. February 1, 2019
14 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended Or-
der 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.
15 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.”