Able Building Maintenance Company

National Labor Relations Board - Administrative Judge Opinions

Nov 16, 2006

20-CB-012510 (N.L.R.B. Nov. 16, 2006)

JD(SF)–58–06
San Francisco, CA

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
SAN FRANCISCO DIVISION OF JUDGES

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 87 (ABLE BUILDING
MAINTENANCE COMPANY)

and Case 20-CB-12510

CARLOS SERRANO, An Individual

Shelley Brenner, Atty, of San Francisco,
California, for the General Counsel
Jane Brunner, Atty, of Oakland, California,
for Respondent

DECISION

Statement of the Case

MARY MILLER CRACRAFT, Administrative Law Judge. The complaint1 alleges that
Service Employees International Union, Local 87 (Respondent or the Union) violated Section
8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act2 by requesting that Able Building
Maintenance Company (ABMC) discharge its employee Carlos Serrano for a reason other than
Mr. Serrano’s failure to tender uniformly required initiation fees and periodic dues. More
specifically, the complaint alleges that Respondent caused the discharge of Mr. Serrano
pursuant to an internal union bylaw which prohibits members from working for more than one
company covered by the collective bargaining agreement between San Francisco Maintenance
Contractors Association (SFMCA) and Respondent and/or from working simultaneously at two
jobs in the same industry covered by the SFMCA contract.

All parties were afforded full opportunity to appear, to introduce relevant evidence, to
examine and cross-examine witnesses, and to argue the merits of their respective positions. On
the entire record, including my observation of the demeanor of the witnesses,3 and after
considering the briefs filed by counsel for the General Counsel and counsel for Respondent, I
make the following findings of fact and conclusions of law.

1 This case was tried in San Francisco, California, on June 14 and July 20, 2006. The
charge was filed by Carlos Serrano, an individual, on November 7, 2005, and amended on
November 18, 2005, and January 31, 2006. The complaint issued on January 31, 2006, and
was amended on May 31, 2006. All dates are in 2005 unless otherwise referenced.
2 29 U.S.C. Sec. 158(b)(1)(A) and (b)(2).
3 Credibility resolutions have been made based upon a review of the entire record and all
exhibits in this proceeding. Witness demeanor and inherent probability of the testimony have
been utilized to assess credibility. Testimony contrary to my findings has been discredited on
some occasions because it was in conflict with credited testimony or documents or because it
was inherently incredible and unworthy of belief.
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I. FINDINGS OF FACT

During 2005, Union member Carlos Serrano worked as a regular full-time employee at 425
Market Street.

Since 1984, Carlos Serrano has worked as a janitor in San Francisco, California, at 425
Market Street. Additionally, Mr. Serrano has been a member of the Union since 1984. Currently,
his hours at 425 Market Street are from 6 pm to 1:45 am, Monday through Friday, for a total of
37.5 hours per week. This is considered full-time employment. Throughout Mr. Serrano’s
employment at 425 Market Street, various janitorial contractors have been awarded the janitorial
contract for that building.

During 2005, the Union’s multi-employer contract with SFMCA applied to employees working at
425 Market Street.

Prior to July 1, 2005, OneSource Building Services, Inc. provided janitorial services at
425 Market Street. OneSource was a party to the Union’s multi-employer contract with SFMCA.
This multi-employer contract applied to OneSource employees working at 425 Market Street.
On July 1, ABMC took over the contract at 425 Market Street. ABMC was a party to the multi-
employer contract and employees of OneSource continued to work for ABMC under the same
contract.

During 2005, Union member Carlos Serrano worked regular part-time hours at University of San
Francisco (USF).

In September 2003, Mr. Serrano began working a second janitorial job, this one located
at USF. He routinely worked regular hours on Saturday and Sunday and was on call from 4 am
to 8 am during the week. At all relevant times, the janitorial contractor at USF was ABMC.
Regarding his weekend hours, Mr. Serrano was a regular part-time employee of ABMC at USF.

During 2005, a single employer contract between the Union and ABMC applied to ABMC
employees at USF.

Although ABMC is a member of the multi-employer bargaining group SFMCA, it
nevertheless has a single employer contract (the USF contract) with the Union covering its USF
employees. The USF contract was effective from 2001-2005.

In October 2005, the Union approved a bylaw precluding Union members from working for more
than one company covered by the SFMCA contract and/or from working “simultaneously at two
jobs in the same industry that are covered by the [multi-employer contract].” The purpose of this
bylaw was to prevent inequities in employment opportunities.

On August 13, 2005, at a regular membership meeting of the Union, a proposed
constitutional bylaw amendment to Article XIV, Section 10, received its first reading. The
amendment stated,

A member may on[ly] work for one Company covered by the Collective
Bargaining Agreement between [SFMCA] and [the Union]. Members are
prohibited from working simultaneously at two jobs in the same industry that are
covered by the above-mentioned Agreement.
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The proposed bylaw amendment was read at a subsequent meeting on September 10.
On October 8, the bylaw amendment passed.

On this record, it is undisputed that Mr. Serrano was paid no overtime pay by ABMC even
though he routinely worked in excess of 40 hours per week when the hours at 425 Market Street
and at USF were combined.

It is probable that Mr. Rojas discovered that Mr. Serrano was working two jobs for ABMC,
resulting in his working in excess of 40 hours per week.

In early November 2005, ABMC project manager Ricardo Rojas called the Union and spoke
with Union executive board member and Union employee Carmen Cortez about the new bylaw.

Ms. Cortez confirmed that the bylaw had been approved.

Mr. Rojas told Ms. Cortez that he recently learned that Carlos Serrano was working two jobs for
ABMC.

Ms. Cortez told Mr. Rojas that it was up to him.

It is uncontradicted that Ricardo Rojas, ABMC project manager at USF, and Union
executive board member and employee Carmen Cortez4 spoke by telephone in early November
2005 about the new bylaw. Neither Mr. Rojas nor Ms. Cortez asserts that Ms. Cortez explicitly
told Mr. Rojas to terminate or remove Mr. Serrano from his position with ABMC at USF. All other
aspects of their conversation are disputed.

My findings, above, are based on numerous credibility resolutions. For instance, Ms.
Cortez testified that in early November Mr. Rojas called her to ask if it was true that the Union
had a new bylaw that prohibited members from having two jobs.5 Ms. Cortez responded that it
was true. On the other hand, Mr. Rojas testified that in early November 2005, he received a
telephone call from Ms. Cortez.6 According to Mr. Rojas, Ms. Cortez told him that Mr. Serrano
was working two different jobs and this was contrary to union rules.

To resolve the conflict of who called whom, I turn to the testimony of Union president
Olga Miranda. I credit her uncontradicted testimony that the bylaw had not been implemented
by the Union. No decision had been made regarding fines or other methods of enforcement of
the bylaw. In contrast, another bylaw amendment explicitly set forth the fines to be levied. Thus

4 In its answer, the Union admits that Ms. Cortez, executive board member, is an agent of
the Union within the meaning of Sec. 2(13) of the Act. In addition to being on the executive
board, Ms. Cortez also worked as an employee of the Union from September through
December 2005. She described her duties as answering the phone and helping members. Ms.
Miranda explained that Ms. Cortez was hired by the Union vice-president after Ms. Miranda
began her maternity leave on September 6, 2005. Ms. Miranda noted that Ms. Cortez was a
“member organizer” and assisted union staff who could not speak Spanish. She also visited
buildings with officers of the Union.
5 Although the parties assumed that the bylaw prohibited Mr. Serrano from holding his two
jobs, the literal language of the bylaw may not have impacted Mr. Serrano’s situation.
6 Although Mr. Rojas did not know Carmen’s last name, there is no doubt that the person
Mr. Rojas spoke to was Carmen Cortez.
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it would appear implausible that Ms. Cortez would call Mr. Rojas about the impact of the new
bylaw. Moreover, even if a method of implementation had been determined, it is highly
improbable that of the 2800 members of the Union, Ms. Cortez would single-handedly decide
that Mr. Serrano should be the first member impacted by the bylaw and unilaterally make a call
to ABMC to alert them to the bylaw implications for Mr. Serrano.7

It is more probable that Mr. Rojas discovered that Mr. Serrano was working for ABMC in
excess of 40 hours per week and, upon learning that the Union had passed a bylaw on the
subject of members holding two jobs, he called the Union to inquire about the bylaw. Thus I find
that Mr. Rojas called the Union.

Although Ms. Cortez adamantly testified that Mr. Serrano’s name was not mentioned
during the conversation with Mr. Rojas, I find to the contrary. After consulting her sworn affidavit,
Union president Olga Miranda testified that Ms. Cortez told her that Mr. Serrano’s name was
mentioned during the conversation. After her recollection was refreshed, Ms. Miranda testified
that Ms. Cortez reported that Mr. Rojas told her that Mr. Serrano was working at USF during the
day. I credit Ms. Miranda’s refreshed recollection, as set forth in her affidavit, that Mr. Serrano’s
name was mentioned during the Cortez/Rojas conversation, as reported to Ms. Miranda by Ms.
Cortez.

Moreover, Mr. Rojas testified that Mr. Serrano’s name was mentioned during the
conversation with Ms. Cortez. His testimony corroborates Ms. Miranda’s refreshed recollection
of Ms. Cortez’ description of the conversation. Thus, I find, based upon the testimony of Ms.
Miranda and Mr. Rojas, that Mr. Serrano’s name was mentioned during the conversation.

Based upon my credibility resolutions set forth below, I find that Mr. Rojas asked if it was
true that the Union had a new bylaw that prohibited members from having two jobs. Ms. Cortez
said it was true. Mr. Rojas stated that Mr. Serrano was working two different jobs for his
company and this was contrary to union rules. Ms. Cortez responded, “It’s up to you.”

According to Ms. Cortez, Mr. Rojas told her that it had come to his attention that he had
“a person that is working two jobs for the company he worked for.” Although Ms. Cortez denied
responding, “It’s up to you,”8 I credit the statement in her sworn affidavit to this effect. As
explained in her sworn affidavit, Ms. Cortez told Mr. Rojas that it was up to him because she
thought he was calling the Union to make sure he was not breaking any rule by having an
employee work two jobs. As enhanced by her sworn affidavit, I credit Ms. Cortez testimony that
she told Mr. Rojas it was up to him.

7 In this regard, I have taken into consideration Mr. Serrano’s testimony (denied by Ms.
Cortez) that he visited the Union Hall in October to pay his monthly fees. At that time, according
to Mr. Serrano, Ms. Cortez asked him to speak to a group of people. He declined and Ms.
Cortez became angry and threatened to call the police. Mr. Serrano further testified that he left
the Union Hall, took his five-year-old son to his mother’s, and returned to the Hall to await the
arrest threat. After waiting 20 minutes, Mr. Serrano went home. Ms. Cortez denied that she
threatened to call the police regarding any member of the Union. Mr. Serrano’s scenario makes
no sense to me and it is, therefore, discredited.
8 I discredit Ms. Cortez’ awkward attempt to distance herself from her sworn affidavit which
clearly states that she told Mr. Rojas, “It’s up to you” after affirming that the bylaw had been
passed. Her affidavit states, “The reason I told [Mr. Rojas] that it was up to him was because I
thought he was calling the union to make sure he’s not breaking any rules by having the
employee work two jobs.”
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Mr. Rojas testified that after Ms. Cortez told him that Mr. Serrano was in violation of the
new bylaw, Mr. Rojas asked for something in writing to confirm the bylaw. Mr. Rojas identified a
document faxed to him by the Union on November 18 as identical to the document faxed to him
in early November. Mr. Rojas explained that he had either lost the early November faxed
document or given it to Mr. Serrano. Ms. Cortez denied that she faxed the bylaw to Mr. Rojas.

I have not credited Mr. Rojas’ assertion that Ms. Cortez told him to fire Mr. Serrano or
Mr. Rojas’ testimony that he received a faxed document from Ms. Cortez for several reasons
including relative demeanor, lack of corroboration, improbability, and internal inconsistency. I
found Mr. Rojas’ attempt to finesse the November 18 document for an earlier document
untrustworthy. In this respect, I note that no telephone records, which might have corroborated
his testimony, were offered. Finally, on cross-examination, Mr. Rojas testified that if the Union
told him to fire an employee, he would do so no matter what reason was given. However, he
inconsistently admitted that he was aware only that the Union could request the discharge of an
employee for failure to pay dues and fees.

On November 4, ABMC told Mr. Serrano that, according to the Union, Mr. Serrano no longer
had a job at USF.

On November 4, Mr. Serrano worked his last day for ABMC at USF. According to Mr.
Serrano, as he was standing in line to punch his card before leaving work on November 4,
ABMC project manager Ricardo Rojas told him that Ms. Carmen Cortez of the Union told Mr.
Rojas that Mr. Serrano did not have a job with ABMC at USF any more.

In basic agreement, Mr. Rojas recalled telling Mr. Serrano that Carmen from the union
called and told him that according to the union rules, Mr. Serrano could not work two different
jobs because that would take away opportunities for other members.

Further testimony regarding meetings on November 7 and 9 does not assist in resolving
credibility or providing insight into the November 4 events

According to Mr. Serrano, on the following Monday, November 7, he spoke with Ms.
Carmen Cortez at the Union Hall. Mr. Serrano testified that Ms. Cortez said that he could not
hold two jobs in the same business due to the Union rule prohibiting a member from holding two
jobs. Mr. Serrano made an appointment for Wednesday, November 9, to speak with Ms. Olga
Miranda, President of the Union.

Ms. Cortez testified that when Mr. Serrano came to the Union hall, he was very upset
and said, “I’m here because you told my supervisor to fire me.” Ms. Cortez told Mr. Serrano no.
She explained to Mr. Serrano that she only told Mr. Rojas that the new bylaw had been passed.

Not only does the testimony of Mr. Serrano and Ms. Cortez conform to their prior
testimony regarding the events of November 4, it is also consistent with my finding of fact that
Ms. Cortez told Mr. Rojas that it was up to him.

At the November 9 meeting, according to Mr. Serrano, he demanded a layoff letter or a
termination letter as well as holiday and birthday pay. Ms. Miranda asked who gave Mr. Serrano
the layoff and he responded that Ms. Cortez had done so. At that point, Ms. Cortez was asked
to join the meeting.

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Ms. Miranda testified basically in agreement. She recalled that Mr. Serrano came to her
office and demanded to know why she had removed him. Ms. Miranda told Mr. Serrano that she
did not know he had been removed from 425 Market. Mr. Serrano explained that he had not
been removed from 425 Market but, rather, from USF. Ms. Miranda said she did not know that
he worked there. Mr. Serrano told Ms. Miranda that Ms. Cortez had given an order to have him
removed. Ms. Miranda countered that Ms. Cortez did not have any authority to remove
employees from their jobs. Ms. Miranda then called Ms. Cortez to the meeting.

According to Ms. Miranda, she asked Ms. Cortez if she had given an order to Mr. Rojas
to have Mr. Serrano removed from his job. Ms. Cortez denied that she had done so. Ms. Cortez
stated that Mr. Rojas had called her about a constitutional amendment and she had answered
his questions, acknowledging that a change had been made. Ms. Cortez told Mr. Serrano that
she never gave an order to have Mr. Serrano removed.

According to Mr. Serrano, Ms. Miranda told Ms. Cortez, “You have been fired. You have
been fired.” Mr. Serrano then observed a power struggle between Ms. Miranda and Ms. Cortez,
Ms. Miranda asserting that she was the president and could do what she pleased and Ms.
Cortez countering that Ms. Miranda was not the owner of the Union. In any event, according to
Mr. Serrano, Ms. Miranda explained that it had been a mistake to lay off Mr. Serrano. Shouting
and crying ensued and Ms. Miranda and Ms. Cortez began speaking only in English, which Mr.
Serrano could not understand. Ms. Miranda asked Mr. Serrano to leave.

According to another version of Mr. Serrano’s testimony, this one on cross-examination,
Ms. Miranda told Mr. Serrano that he should be fired because he could not have two jobs. Mr.
Serrano agreed that one of his affidavits stated that Ms. Miranda told ABMC to discharge him.
When asked whether it was Ms. Miranda or Ms. Cortez that told ABMC to fire him, Mr. Serrano
stated that he did not know. Then on redirect examination, Mr. Serrano stated that he was
confused and nervous on cross-examination but, actually, Ms. Cortez was the one who told
ABMC to fire him.

Ms. Miranda testified that during the meeting with Mr. Serrano, Ms. Cortez joined them
and explained that she received a call from Mr. Rojas asking if there was a constitutional
change that members were not allowed to work two jobs. Ms. Cortez told him that there was
such a change. Although Ms. Miranda did not independently recall the remainder of the
conversation, after consulting her sworn affidavit, she agreed that she told Ms. Cortez that she
should not always believe that management supervisors were concerned about violating the
contract when they called for information, and that as a Union representative, she should
question supervisors about asking for information about in-house amendments. Further, Ms.
Miranda agreed that she told Ms. Cortez that she could fire her as a Union employee even
though she could not remove her from the executive board of the Union. Ms. Miranda agreed
that Ms. Cortez became upset and began crying and that she and Ms. Cortez were speaking in
raised voices. Although Ms. Cortez was later discharged on December 5, Ms. Miranda testified
that this had nothing to do with the way Ms. Cortez handled the telephone call from Mr. Rojas.

Ms. Cortez testified that when she arrived in Ms. Miranda’s office, Ms. Miranda
confronted her with Mr. Serrano’s assertion that Ms. Cortez told Mr. Rojas to fire Mr. Serrano.
Ms. Cortez told Ms. Miranda that she had already explained to Mr. Serrano that she did not tell
Mr. Rojas to fire Mr. Serrano. She only told him that a bylaw had been passed.

Ms. Cortez agreed that an argument ensued between Ms. Miranda and her. Before Ms.
Cortez could explain to Ms. Miranda that she had not ordered the discharge of Mr. Serrano, Ms.
Miranda ordered Ms. Cortez to apologize to Mr. Serrano. Ms. Cortez refused and the argument
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ensued. During the argument, Ms. Miranda accused Ms. Cortez of using the wrong work ethic.
Ms. Miranda told Ms. Cortez that she was the one who gave orders at the Union and she told
Ms. Cortez that she was fired. None of this testimony assists me in making a determination in
this case.

There is no credible evidence of Union animus toward Mr. Serrano

In addition to the evidence regarding Ms. Cortez’ alleged threat to call the police, which I
have discredited, after Mr. Serrano testified that he could not recall further conversation with Ms.
Miranda on November 9, he was asked, “When you spoke to her initially, did you complain
about what had happened to you being discharged?” He responded that during his meeting with
Union president Olga Miranda on November 9, when he explained to her that he had been laid
off at USF, she responded in a mocking tone, “because [you] are a shop steward, [you have] the
right to hold two jobs.” Ms. Miranda denied this comment. She testified that she did not know
that Mr. Serrano held two jobs. She also testified that Mr. Serrano was not retained as a shop
steward at 425 Market Street when the Union emerged from control by a sister local.

Mr. Serrano also testified that approximately two months after Ms. Miranda’s June 2005
election as president, she held a meeting with about 10 employees outside 425 Market Street at
the Fremont entrance. Ms. Miranda told the assembled employees that she wanted to switch
insurance and also convert employees to a 401(k). Mr. Serrano testified that he asked her who
had requested a change in insurance because the employees were happy with their current
insurance. According to Mr. Serrano, Ms. Miranda responded that Mr. Serrano was going to get
into trouble. Ms. Miranda said she would wait for Mr. Serrano in her office. Mr. Serrano
responded that he never had any problems but his co-workers had problems. Ms. Miranda
responded in a mocking manner, “He who laughs last, laughs best.”

Mr. Serrano testified that at a second meeting a few days later with 10 employees held
outside at 50 Fremont, the same colloquy between Ms. Miranda and Mr. Serrano occurred in
that she stated she wanted to switch insurance, he stated that no employees had requested a
change in insurance, and Ms. Miranda responded that Mr. Serrano was going to have problems
and she would expect him in her office and he who laughs last, laughs best.

Ms. Miranda testified that once she was elected president, she did not hold meetings
outside the buildings. Prior to her election, she held meetings on the street. She could not recall
a date when she held meetings to discuss insurance changes but thought such meetings were
probably in 2003 because that was about the time of a decertification election. Later, Ms.
Miranda stated that the meetings were in June 2005. In any event, Ms. Miranda denied that Mr.
Serrano asked any questions at these meetings and denied that she said Mr. Serrano was
going to get into trouble. Ms. Miranda recalled using the phrase, “he who laughs last, laughs
best” in Spanish in addressing all employees, meaning that those who joined the process of
collective action would triumph eventually.

Based upon their relative demeanors, the internal consistency of the testimony, and the
inherent probability of the accounts, I credit the testimony of Ms. Miranda over that of Mr.
Serrano. Initially, I find it highly improbable that identical exchanges would occur in two
consecutive meetings. Secondly, none of the other ten employees was called to corroborate Mr.
Serrano’s testimony regarding the alleged threats made to him by Ms. Miranda. Finally, Ms.
Miranda impressed me as credible in her denial of making such threats to Mr. Serrano.
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II. ANALYSIS

Section 8(b)(1)(A) and 8(b)(2) of the NLRA provide as follows:

It shall be an unfair labor practice for a labor organization or its agents (1) to
restrain or coerce (A) employees in the exercise of the rights guaranteed in
section 7 . . .or (2) to cause or attempt to cause an employer to discriminate
against an employee in violation of [section 8(a)(3)] or to discriminate against an
employee with respect to whom membership in such organization has been
denied or terminated on some ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a condition of acquiring or
retaining membership . . . .

An essential element of any violation of Section 8(b)(1) is restraint or coercion in the
exercise of a Section 7 right; i.e., the right to form, join or assist a labor organization, or to
refrain from such activity. Opposition to officers or policies of a labor organization constitutes
protected Section 7 activity.9 The credited evidence, however, fails to reflect that Mr. Serrano
engaged in Section 7 activity.

An essential element of a violation of Section 8(b)(2) is that the union must cause or
attempt to cause discrimination. There is no credible evidence of an express demand from the
Union causing Mr. Serrano’s discharge and thus there is no evidence that the Union directly
caused his discharge.

In order to establish an attempt to cause an employer to discriminate against an
employee, there must be some evidence of union conduct. “It is not sufficient that an employer’s
conduct might please the union.” Wenner Ford Tractor Rentals, 315 NLRB 964, 965 (1994),
quoting Toledo World Terminals, 289 NLRB 670, 673 (1988). However, where a reasonable
inference of a request is supported, direct evidence of an express demand is not necessary.
Avon Roofing & Sheet Metal Co., 312 NLRB 499 (1993) (direct evidence of an express demand
by the union is not necessary where evidence supports reasonable inference of union request).

The credited evidence reflects that in the context of discussing the Union’s bylaw with
Mr. Rojas, Ms. Cortez said only, “It’s up to you.” There is no reasonable basis upon which to find
an inference of an attempt to cause discharge from this statement. Standing alone, the
statement “it’s up to you” would most reasonably be understood literally; that is, the Union wants
no involvement in ABMC’s decision.

9 See, e.g., Sheet Metal Workers Local 16 (Parker Sheet Metal), 275 NLRB 867 (1985),
citing Operating Engineers Local 17 (Combustion Engineering), 231 NLRB 1287 (1977).
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Moreover, discharge was not a foreseeable consequence of the labor organization’s
communication, “it’s up to you.”10 Mr. Serrano’s discharge was not a foreseeable consequence
of telling Mr. Rojas that it is up to him whether to allow Mr. Serrano to work at two jobs for
ABMC.11 Taken in context, I conclude that a preponderance of the credible evidence does not
establish that the Union attempted to cause the discharge of Mr. Serrano.

III. CONCLUSIONS OF LAW

The National Labor Relations Board has jurisdiction of this case by virtue of ABMC’s indirect
effect on interstate commerce.

ABMC, a corporation with an office and place of business in San Francisco, California,
provides services as a janitorial contractor. During calendar year 2005, ABMC provided janitorial
services in excess of $50,000 within the State of California, to firms that meet one of the NLRB’s
jurisdictional standards on a direct basis. Thus, I find that ABMC is engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

Respondent is a labor organization within the meaning of the NLRA.

Respondent admits and I find that it is a labor organization within the meaning of Section
2(5) of the Act.

A preponderance of the evidence does not support a finding that Respondent restrained or
coerced Mr. Serrano because of his protected activity.

A preponderance of the evidence does not support a finding that Respondent caused or
attempted to cause the Employer to terminate Mr. Serrano.

Respondent has not violated the Act.

On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended12

10 If a foreseeable consequence of the communication is discharge, an explicit demand to
discharge is not required. See, e.g., Town & Country Supermarkets, 340 NLRB 1410, 1411
(2004) (union seized upon union dissident’s statement, “next time I see you I’m going to kick
your ass. I’m not afraid of you” by reporting this to employer as a threat in violation of
employer’s handbook knowing that dissident employee would be discharged for making the
statement); Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323 NLRB 1042, 1044 (1997),
enfd. 865 F.2d 251 (3d Cir. 1998)(union’s report of racial harassment to employer with full
knowledge of employer’s rules concerning such conduct, when coupled with union’s
unsupported statement that African-American employees were upset by remark, supports
inference of an implied request that dissident employee be disciplined)
11 See, e.g., Laborers Local 158 (Contractors of Pennsylvania), 280 NLRB 1100 (1986)
(knowledge of political dissension within union may have been known to employer but is
insufficient to support an inference that union requested discharge of dissident employee).
12 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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ORDER
The complaint is dismissed.

Dated: December 16, 2006.

____________________
Mary Miller Cracraft
Administrative Law Judge