Oregon School Employees Association Chapter 204, American Federation of Teachers, Local 6732 (First

National Labor Relations Board - Administrative Judge Opinions

Jul 28, 2014

19-CB-106045 (N.L.R.B. Jul. 28, 2014)

JD(SF)–39–14
Gresham, OR
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
OREGON SCHOOL EMPLOYEES
ASSOCIATION CHAPTER 204,
AMERICAN FEDERATION of TEACHERS,
LOCAL 6732 (FIRST STUDENT, INC.),
and Case 19-CB-106045
KEN HOWARD, an Individual.
Lisa J. Dunn, Esq., for the General Counsel.
Katelyn S. Oldham, Esq. (Tedesco Law Group),
for the Respondent.
William L. Messenger, Esq.
(National Right to Work Legal Defense Foundation),
for the Charging Party.
DECISION
STATEMENT OF THE CASE
Eleanor Laws, Administrative Law Judge. This case was tried in Portland, Oregon on
April 29, 2014. Ken Howard (Charging Party) filed the charge on May 18, 2013,1 and the
General Counsel issued the complaint on August 20. The Oregon School Employees
Association Chapter 204, American Federation of Teachers, Local 6732 (Respondent, Union, or
OSEA), filed a timely answer denying all material allegations.
The complaint alleges the Union violated Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) when one of its agents: (1) removed materials related to the rights of
employees not to be members of Union and/or to object to the payment of dues and fees for
nonrepresentational activities from the employee bulletin board in the drivers’ break room; (2)
informed employees that the Union would seek assistance from First Student to prohibit the
posting of the materials related to the rights of employees not to be members of the Union and/or
to object to the payment of dues and fees for nonrepresentational activities on the employee
bulletin board; and (3) threatened an employee with bodily injury because he made statements in

1 All dates are in 2013 unless otherwise indicated.
JD(SF)–39–14
2
opposition to the Union and/or informed other employees of their rights not to be members of
Union, to object to the payment of dues and fees for nonrepresentational activities, and/or to
petition for a union-security de-authorization election.
On the entire record,2 including my observation of the demeanor of the witnesses, and 5
after considering the briefs filed by the General Counsel, the Charging Party, and the
Respondent, I make the following
FINDINGS OF FACT
10
I. JURISDICTION
At all material times, First Student, Inc. (the Company), has been a Delaware corporation
with an office and place of business in Gresham, Oregon, and has been engaged in the business
of providing school bus transportation services to various school districts. The Company, at all 15
material times, purchased and received at its Gresham facility goods valued in excess of $50,000
directly from points outside the State of Oregon. The Company admits, and I find, that it is an
employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The
Union admits, and I find that it a labor organization within the meaning of Section 2(5) of the
Act. 20
II. ALLEGED UNFAIR LABOR PRACTICES
This complaint centers around a dispute between two bus drivers for First Student:
Kenneth Howard, an outspoken antiunion advocate, and Christopher Botcheos, a union adherent 25
who served as its interim secretary during the relevant time period.3
In and around February 2013, about 125 bus drivers worked at First Student’s Gresham
facility. The drivers, driver-trainers, and monitors at the Gresham facility are represented by the
OSEA. The Union and the Company are parties to a collective-bargaining agreement (CBA) 30
effective 2010 to 2015. The CBA contains a union security clause requiring covered employees

2 Abbreviations used in this decision are as follows: “Tr.” for transcript; “R Exh.” for Respondent’s
exhibit; “GC Exh.” for General Counsel’s exhibit; “GC Br.” for the General Counsel’s brief; “R Br.” for
the Respondents’ brief; and “CP Br.” for Charging Party’s brief. Although I have included several
citations to the record to highlight particular testimony or exhibits, I emphasize that my findings and
conclusions are based not solely on the evidence specifically cited, but rather are based on my review and
consideration of the entire record.
3 At the time of the hearing, Botcheos was the union president. The parties entered into the following
stipulation: “Respondent admits that at all material times during February, 2013, Christopher Botcheos
held the position of Respondent's interim secretary, and in his capacity as interim secretary, has been an
agent of Respondent within the meaning of § 2(13) of the Act.” (Tr. 7–8.) In her brief, counsel for the
General Counsel renewed a motion to admit rejected GC Exh. 12, comprised of two grievances Botcheos
filed on November 1, 2013, in his capacity as Union President. Botcheos filed no grievances during the
time period at issue in this complaint. His later actions of filing grievances after assuming the position of
Union President do not help me decide the issues before me, and I therefore decline to admit this
evidence.
JD(SF)–39–14
3
to remain members of the Union in good standing, and requiring First Student to deduct union
dues from covered employees’ wages and remit the funds to the Union.
As interim secretary for the Union, Botcheos attended union meetings and, as a member
of the executive committee, made recommendations to union members. When new employees 5
were hired, Botcheos introduced himself and provided information about the Union. Botcheos
was also a union steward. Though he had acted in his capacity as a steward at the time of the
hearing, his role was to receive complaints from members and represent them if they were facing
potential discipline. Botcheos also served as a member of the Union’s negotiating committee
from April through October 2012. In that capacity, he attended bargaining sessions and 10
communicated the status of negotiations to members.
Drivers work a morning route from roughly 6:30 to 9 a.m. Some drivers work a midday
route from about 10 a.m. to 1:30 p.m. The afternoon route is from roughly 2 to 4:30 p.m.
Michael Jourdan is the manager of the Gresham location. He had previously been a driver in 15
Montana, where drivers were represented by a union, but he opted not to be a member of the
union.
Drivers enter the workplace through a main entrance on the ground floor of the facility.
Inside the entryway, there is a bulletin board on the right exclusively for the Union.4 (GC Exh. 20
2.) The bulletin board contains postings showing the Union’s executive board members and
stewards along with their contact information. There are also sometimes postings about
upcoming union meetings and other events.
The drivers’ break room is upstairs from the main entryway. It contains a few tables with 25
chairs, a refrigerator and sink, and some cubbies. There is a bulletin board for all employees to
use. Items posted on the bulletin board have included a calendar, advertisements for items
drivers are selling, and upcoming events. Jourdan’s office is adjacent to a driver’s room. (GC
Exhs. 4, 9.) At a safety meeting some time prior to February 2013, Jourdan told the drivers that
they were not to remove anything from the drivers’ room bulletin board without his permission. 30
Howard has worked for more than six years as a school bus driver at First Student’s
Gresham location. He is opposed to the Union, and posts signs in his car window saying “No
Union” and “You are not entitled to what I have earned.”5 Howard has been involved in efforts
to decertify the Union, and he previously filed a complaint that the OSEA had misled employees 35
about the requirement to be a union member.6
Howard has posted materials on the employee bulletin board and on the tables in drivers’
room about employee rights regarding the Union, some of which are from the National Right to
Work Foundation’s website. For example, he has posted material on how to become a service 40
fee payer, which means opting out of certain union dues. He has also posted information about
how to work at First Student without being a union member, and how to resign union

4 The Union’s right to maintain the bulletin board is set forth in Art. 9 of the CBA. (GC Exh. 13.)
5 Howard also has some signs reflecting a negative sentiment toward President Obama.
6 The complaint was resolved and as of November 2012, the Union has discontinued providing the
alleged misinformation.
JD(SF)–39–14
4
membership. (GC Exhs. 6–8.) Howard has posted similar material on a table in front of the
bulletin board and on the other tables in the break room. Botcheos sometimes posted items in
response to Howard’s posts, but he usually ignored them.
The bulletin board became a point of contention at some point. According to Howard, 5
some other individual or individuals repeatedly covered up his postings. Howard would them
move the posting that covered up his posting, trying to ensure he did not cover up anyone else’s
postings. According to Botcheos, Howard would move things up to the left corner of the bulletin
board to make more room for his postings. A couple of employees complained to Botcheos
about Howard this. Botcheos told them it was the employees’ board, not the Union’s, so they 10
needed to take their concerns to Jourdan.
On February 22, Howard and Botcheos got in a disagreement.7 Botcheos recalled that
Howard was sitting at a table with some coworkers discussing Social Security. Howard
commented that he did not intend to collect it. Botcheos responded that because Social Security 15
is an insurance program employees pay into, collecting it is not accepting a gift. Howard called
Botcheos unpatriotic, which offended him because he was in the Army, his father was a Marine,
his two sons plan to be officers in the military, and his daughter is in the Coast Guard. Botcheos
asked what branch of the service Howard served in, and he responded that he had not served.
Howard got up from the table and started rearranging things on the bulletin board. Botcheos 20
confronted him, and Howard said his postings were more important. Botcheos then tore down
Howard’s posting, threw it at his feet, and said “How important is it now?”

Howard, who did not remember much of the conversation, did not recall using the word
“unpatriotic” but he knew whatever word he used offended Botcheos and prompted him to talk 25
about his military service. Howard did not think Botcheos’ removal of materials was related to
the exchange. Though he could not remember whether the two incidents occurred on the same
day or during the same week, he recalled the verbal exchange did not take place immediately
before Botcheos removed the material. Instead, Howard recalled that Botcheos was near the
bulletin board and loudly said that he was removing Howard’s materials but not removing any 30
other postings. Botcheos then removed the postings Howard had put up, but no other postings.
Botcheos did not mention the Union. At the time, an OSEA card and an anti-National Right to
Work Foundation letter were posted on the employee bulletin board.
Howard and Botcheos took the matter to Jourdan. What happened next comes in three 35
different versions. Howard recalled that he and Botcheos went to see Jourdan together.
Botcheos expressed his belief that neither prounion nor antiunion materials belonged on the
employee bulletin board. Jourdan agreed, and a rule banning such materials took effect.
According to Botcheos, Howard went to get Jourdan and they all went into Jourdan’s40
office. Botcheos explained to Jourdan that his issue was with Howard moving things around,
and had nothing to do with union vs. nonunion. Jourdan decided the board would not be used for
union, nonunion, or other political topics, and he would police the board on a weekly basis.

7 Howard could not recall the date of the agreement. Botcheos’ testimony that it was on February 22
is unrefuted.
JD(SF)–39–14
5
Jourdan recalled Howard came to see him, with Botcheos close behind. Howard was
upset because Botcheos moved his materials on the bulletin board, and Botcheos said he was just
trying to clean up the board because Howard’s materials were covering everything else. Jourdan
told them that employees should not be moving each others’ postings, and they should see him if
something needed to be removed. He did not recall whether he said anything about political 5
information. Jourdan denied that Botcheos suggested leaving union and nonunion material off
the bulletin board, but instead recalled him saying the board was getting cluttered. Jourdan
viewed the incident as a squabble between employees, and no discipline ensued.
Later that afternoon, a dispute arose between Botcheos and Howard inside the front 10
entryway by the Union’s bulletin board. In his written statement made shortly after the incident,
Howard said that during a conversation between himself, Botcheos, and another employee,
Howard mentioned the option of a deauthorization election. Botcheos then stepped close to
Howard’s face, and told him forcefully that the next time he saw him alone in the parking lot, he
would stomp on him. Botcheos then swore at Howard. Howard told Botcheos and the other 15
person that he was going to speak with Jourdan, he then reported what occurred to Jourdan and
wrote a statement. (GC Exh. 11.) Afterward, he looked for Botcheos and the other person, but
they had left.
At the hearing, Howard testified that he heard Botcheos talking about union membership 20
with another individual. The other individual was wearing a training vest, so Howard assumed it
was a new employee. Though unable to recall the employee’s gender with certainty, Howard
thought the employee was male. Howard joined the conversation and explained the rights to be a
service fee payer, to leave the membership, to get a discount on dues as a service fee payer Beck
objector,8 and the right to have a de-authorization election. Botcheos stepped much closer to 25
Howard and, in addition to saying he would stomp on him, Botcheos also said he would hit him,
kick him, and knock him down in the parking lot if he found him alone. Howard walked slowly
out to the parking lot, but then came back in, told Botcheos and the other employee he was going
to talk to Jourdan, and proceeded to do so.
30
Botcheos recalled he was talking to an employee named Allison by the bulletin board.
Michele Hart, a relatively new driver and union member, walked in she and Botcheos had a
conversation about the Union. Howard interrupted, and said that Botcheos should be telling
everyone about the decertification petition and the employees’ right to sign the petition.
Botcheos told Howard he was having a private conversation and he should stay out of it. He 35
then stepped aside with Howard and told him very forcefully that this was personal and he didn’t
like him.
Hart recalled that she and Botcheos were in front of the OSEA bulletin board talking
about some of the information on the board, and Howard interrupted. Botcheos told Howard he 40
was talking to Hart, and instructed him to move along. Howard did not want to move along, and
just kept talking, which she perceived as rude. Botcheos and Howard then had a brief
conversation, about 10 feet away. Hart could only hear bits and pieces, but heard Botcheos
reiterate that Howard should be on his way and he was being rude. She did not hear any threats.

8 This refers to Communications Workers of America v. Beck, 487 U.S. 735 (1988), pursuant to
which a represented employee who objects to paying full dues may pay a reduced fee.
JD(SF)–39–14
6
Jourdan spoke with Botcheos and Hart. Botcheos said he was having a conversation with
another driver, and Howard interrupted. Botcheos stepped closer to Howard and they had a
private conversation. According to Jourdan’s notes, Botcheos told Howard he did not like him
but they had to see each other at work. Any place else they should just walk away. Botcheos 5
denied threatening Howard. Hart reported the same thing, but she did not hear what Botcheos
said to Howard during their private conversation. She said there were no raised voices and there
was no indication of any violent activity. (R Exh. 1.) Jourdan also spoke with Allison, who said
the same thing as Hart. Jourdan could not substantiate that any threat was made and no
discipline ensued. 10
III. DECISION AND ANALYSIS
A. Alleged Removal of Antiunion Material from Employee Bulletin Board
15
Complaint paragraphs 5(a) and 6 allege that the Respondent violated Section 8(b)(1)(A)
of the Act when Botcheos removed materials related to the rights of employees not to be
members of Union and/or to object to the payment of dues and fees for nonrepresentational
activities from the employee bulletin board in the drivers’ break room.
20
Under Section 8(b)(1)(A), it is an unfair labor practice for a “labor organization ... to
restrain or coerce employees in the exercise of the rights guaranteed in Section 7.” Section 7
provides that employees have the right to engage in concerted activities and the “right to refrain
from any or all such activities.” Conveying a message critical of a union is protected dissident
activity under Section 7, and it is therefore unlawful for a union to restrain such activity. See 25
Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981).
Before addressing the merits of the “restraint or coercion” claim, I must determine
whether the actions at issue were those of a “labor organization.” See Carpenters Local 102
(Millwright Employees Assn.), 317 NLRB 1099, 1102 (1995). The parties have stipulated that 30
Botcheos, as interim secretary of the Union during the events at issue, was a union agent. The
remaining inquiry, therefore, is whether Botcheos was acting as a union agent when he removed
Howard’s posting.
Section 2(13) of the Act states that “[i]n determining whether any person is acting as an 35
‘agent’ of another person so as to make such other person responsible for his acts, the question of
whether the specific acts performed were actually authorized or subsequently ratified shall not be
controlling.” In other words, an individual need not be actually authorized to take the actions at
issue if it appears he or she possesses such authority. In determining whether an individual has
apparent authority, the Board applies common law principles which it summarized in Mastec 40
North America, Inc., 356 NLRB No. 110, slip op. at pp. 1–2 (2011):
Apparent authority results from a manifestation by the principal to a third party that
creates a reasonable basis for the latter to believe the principal has authorized the alleged
agent to perform the acts in question. Either the principal must intend to cause the third 45
person to believe the agent is authorized to act for him, or the principal should realize that
his conduct is likely to create such a belief. [Citations and internal punctuation omitted.]
JD(SF)–39–14
7
Moreover, under the common law of agency, a principal may be responsible for its agent's
actions if the agent reasonably believed from the principal's manifestations to the agent that the
principal wished the agent to undertake those actions. See Restatement 2d, Agency, § 33. See
also Communications Workers Local 9431 (Pacific Bell), 304 NLRB 446 (1991); M. W. Kellog 5
Constructors, 273 NLRB 1049, 1052 (1984), enfd. in part 806 F.2d 1435 (9th Cir.
1986)(standard is whether it was reasonable to believe steward acting on Union’s behalf).
“The burden of proof is on the party asserting an agency relationship, both as to the
existence of the relationship and as to the nature and extent of the agent's authority.” 10
Longshoremen ILWU/Local 6 (Sunset Line & Twine Co.), 79 NLRB 1487, 1508 (1948). Thus,
the General Counsel must establish that Botcheos removed the Howard’s posting while acting in
his representative capacity.
I find the General Counsel has failed to sustain this burden. In this regard, I credit 15
Botcheos’ testimony that his action of removing Howard’s materials and throwing them at his
feet occurred out of anger over being called “unpatriotic” or a similar adjective. Botcheos’
testimony was more certain than Howard’s, and the chain of events inherently more plausible.
Though denying he called Botcheos unpatriotic, Howard admittedly said something to Botcheos
that angered him and prompted him to talk about his military service. Howard did not know 20
whether this conversation was the same day or even the same week as the incident at issue, but
professed certainty that there was no causal relationship between the two. The fact that Botcheos
had never been motivated in the past to remove Howard’s antiunion materials along with the fact
that he has not attempted to interfere with Howard displaying his materials on the tables in the
break room, supports Botcheos’ testimony Howard’s comment spurred his actions. Despite25
bearing the burden of proof, the General Counsel called no witnesses to corroborate Howard’s
account of what occurred, even though about 10 other employees were in the break room at the
time and Howard’s testimony about when the relevant events occurred was unclear.
Moreover, the General Counsel did not present evidence that the Union empowered 30
Botcheos with regard to the employee bulletin board. Instead, it is clear that Jourdan, not the
Union, controlled the bulletin board. Though the General Counsel contends that a couple of
employees had complained to Botcheos about Howard moving things on the board, Botcheos
provided unrefuted testimony that he told them to address any concerns with Jourdan.
35
The General Counsel points to Int’l Brotherhood of Teamsters, Local 705 (K-Mart), 347
NLRB 439, 441 (2006), to support its contention that Botcheos had apparent authority to act for
the Union. In that case, however, union stewards and business agents threatened employees with
a fine and discharge for supporting the union’s decertification and forcibly removed a
decertification petition from an employee’s hands. Their actions were clearly connected to their 40
status as union agents, unlike here. I note that the incident did not occur in the context of a union
event or during discussion of the Union. Botcheos was working as a driver at the time of the
incident. He did not mention the Union when he removed Howard’s posting, nor did he
comment on posting’s message, which is unknown. Though there is little doubt the posting
Botcheos removed was similar to Howard’s typical antiunion postings, neither Botcheos nor 45
even Howard himself recalled material’s contents, nor is there evidence the content was
announced to the other employees in the room. Even assuming the employees present knew
JD(SF)–39–14
8
Botcheos was a union steward and officer, under the circumstances here, I do not find it would
have been reasonable for them to believe Botcheos was acting on the Union’s behalf.
The General Counsel further relies on International Longshoremen’s Ass’n, Local 20,
AFL-CIO, 323 NLRB 1115, 1122-23 (1997). That case, however, involved a union president’s 5
removal of multiple postings from the bulletin board the union maintained.9 The postings were
memos from a member urging the union to make concessions, and the repeated removal of the
postings prompted the member to make a formal written request to the union’s president for
permission to post factual information and correspondence on the union’s board. This is
meaningfully distinguishable from Botcheos’ one-time emotionally-driven removal of 10
unidentified materials from a board he did not control or maintain.
The General Counsel argues that Botcheos’ previous posting of responses to Howard’s
postings show that his concern was with the content of Howard’s postings rather than Howard’s
actions of moving others’ postings. I do not doubt that Botcheos fundamentally disagreed with 15
the content in Howard’s postings. Until the events at issue, his response to them was to post a
counterpoint when he felt it was warranted, not to remove Howard’s postings. The fact that
Botcheos, and apparently the other union officers and stewards, had left Howard’s antiunion
materials intact until February 22, and did not otherwise interfere with his efforts to distribute his
materials, leads me to conclude there was a catalyst for Botcheos’ actions. Howard’s testimony 20
that Botcheos simply walked up to the board unprompted and loudly announced he was
removing Howard’s materials but nobody else’s does not make sense given the context.
Botcheos’ testimony that he was angered by a comment and subsequently reacted adversely to
Howard moving others’ postings to make room for his own provides a more plausible
explanation.1025
In sum, I agree with Jourdan’s observation that the bulletin board incident was a squabble
between employees, divorced from Botcheos’ status as a union agent. Accordingly, I recommend
dismissal of complaint allegation 5(a).
30
B. Alleged Assistance from Employer to Prohibit Postings
Complaint paragraphs 5(b) and 6 allege that the Respondent violated Section 8(b)(1)(A)
when Botcheos, in the driver's common room at the Gresham facility, informed employees that
Respondent would seek assistance from First Student to prohibit the posting of the materials 35
related to the rights of employees not to be members of Respondent and/or to object to the
payment of dues and fees for nonrepresentational activities on the employee bulletin board.
The complaint allegation does not align with the testimony adduced at the hearing. As
the Union points out, there is no evidence that Botcheos notified employees that he sought to 40
have First Student’s management prohibit anything. The proper allegation, at least in hindsight,

9 Helton, supra, is likewise distinguishable, because it involved the union’s discriminatory
maintenance of its own bulletin board.
10 The General Counsel contends that there was no evidence Howard was moving posted materials on
February 22. This is belied by his testimony that he was moving other employees’ postings before and
including February 22, 2013, because they were covering his postings. (Tr. 30.)
JD(SF)–39–14
9
is that Botcheos “enlisted the intervention of manager Jourdan in restricting § 7 related materials,
while still permitting the posting of other materials.”11 (GC Br. 19.) This issue was fully
litigated and I will therefore decide it. See Pergament United Sales, 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990); HiTech Cable Corp., 318 NLRB 280, 280 (1995), enfd. in
part 128 F.3d 271 (5th Cir. 1997).5
The alleged violation stems from a conversation in Jourdan’s office involving only three
individuals: Howard, Botcheos, and Jourdan. As noted in the statement of facts, there are three
different versions of what occurred. It is undisputed that the outcome of the meeting resulted in
Jourdan imposing a ban on political material on the bulletin board, though Jourdan could not 10
recall whether he said anything about political information. The General Counsel contends that
Jourdan would have no impetus other than Botcheos’ request for imposing restrictions on union or
antiunion postings. When asked whether Botcheos suggested that union and nonunion material
should be left off the board, however, Jourdan responded, “No. I don't think he made that
suggestion. I think what he said was that it was getting cluttered, and he was attempting to 15
unclutter it, to some extent.” (Tr. 107.) While Jourdan’s testimony is phrased with some
uncertainty, he clearly did not view complaint as stemming from a union versus nonunion
dispute. Jourdan’s testimony about this conversation is bolstered by his testimony that he
viewed the incident as a squabble between employees. Had Botcheos suggested that union and
antiunion materials be left off the board, Jourdan’s view of the dispute’s genesis and nature 20
undoubtedly would have involved union sentiment. Finally, Jourdan’s testimony that Botcheos
did not suggest banning union and nonunion materials is supported by Botcheos’ testimony that
he never made such a suggestion.
Of the three individuals party to the conversation, Jourdan is the only neutral when it 25
comes to the Union. Clearly, Botcheos strongly supports the Union, and his recollection
therefore is prone to being more favorable toward the Union. It is just as clear that Howard
strongly disfavors the Union, and therefore his recollection is prone to being less favorable
toward the Union. There is no indication that Jourdan favors either side. I found Jourdan to be a
credible witness based on his thoughtful and sincere demeanor. He did not appear to be 30
embellishing his testimony nor was he susceptible to being directed by questions. For this reason
and the reasons articulated directly above, I credit Jourdan’s testimony.
Based on the foregoing, I find the General Counsel has failed to sustain its burden to
prove that Botcheos enlisted management to prohibit employees from posting Section 7 materials 35
on the employee bulletin board. I therefore recommend dismissal of this complaint allegation.
C. Alleged Threat of Bodily Harm
Complaint paragraphs 5(c) and 6 allege that the Respondent violated Section 8(b)(1)(A)40
when Botcheos, in the downstairs area at the Gresham facility, threatened Howard with bodily
injury because he made statements in opposition to the Union and/or informed other employees
of their rights not to be members of Union, to object to the payment of dues and fees for
nonrepresentational activities, and/or to petition for a union-security de-authorization election.

11 My findings are limited to whether Botcheos’ actions and I do not make any findings as to whether
Jourdan’s rule violates Section 8(a)(1) of the Act because such an allegation is not before me.
JD(SF)–39–14
10
The facts are undisputed that the alleged threat occurred while Botcheos was by the
Union’s bulletin board talking about the Union to a new employee. In this context, I find he was
acting as the Union’s agent.
5
Threats of violence are deemed coercion and restraint within the meaning of Section
8(b)(1)(A). Teamsters Local 115 (Kurz-Hastings, Inc.), 344 NLRB 644 (2005). The test to
determine whether a remark rises to the level of a threat “whether a remark can reasonably be
interpreted by an employee as a threat.” Smithers Tire, 308 NLRB 72 (1992).
10
There are only two individuals who heard what was said: Howard and Botcheos. Not
surprisingly, they offer different accounts of what occurred. For the reasons set forth below, I do
not find either particularly reliable.12
Beginning with Howard, his testimony at the hearing and in his June 2013 affidavit 15
includes alleged threats not written down in his contemporaneous statement. In his statement, he
wrote:
I had mentioned the option of the decertification election. Chris then stepped up to my
face and forcefully told me that once (or the next time) he finds me alone in the parking 20
lot, he would ‘stomp on me’ and then swore at me. The other driver just stood there
behind Chris about 5 feet.
(GC Exh. 11.) At the hearing, Howard testified:
25
He said-- well, in my handwritten testimony, I wrote only the last item, which was stomp
on me. And later I remembered that he would -- he said that he would hit me and kick
me. And a little later than that, I remember adding that he would knock me down in the
parking lot if he found me alone.
30
Howard attributed his initial memory lapse to being rattled by Botcheos’ threat. His actions,
however, raise doubt about this. Had Botcheos threatened to knock him down in the parking lot,
it seems highly unlikely parking lot would be the first place Howard would go. The Union
further notes that Howard did not convey a need for help, protection or assistance at the time, but
instead “went to the supervisor to make his second complaint against Mr. Botcheos that day and 35
then spent nearly an hour writing out a half-page.” (R Br. 27.) Given that at least one other
employee was present, Howard’s failure to speak up at the time of the alleged threat is suspect.
In his statement, Howard characterized the conversation as being among him, Botcheos,
and the other employee. It is clear, however, that Botcheos and Hart were engaged in a 40
conversation with each other and Howard interrupted. Moreover, in his statement, Howard said

12 There are varying accounts about who else was in the area. Botcheos testified Allison and Hart
were present. Hart did not recall another employee being present. Howard recalled another employee
was present, whom he later thought was to be male. Jourdan’s testimony that he talked to both Hart and
Allison, and they said essentially the same thing, convinces me that at some point they were both in the
area and overheard part of the conversation between Howard and Botcheos.
JD(SF)–39–14
11
his mention of the option of the decertification election was what prompted Botcheos to threaten
him. At the hearing, however, he testified that he explained the rights to be a service fee payer,
to leave the membership, to get a discount on dues as a service fee payer Beck objector, and the
right to have a de-authorization election.
5
In addition, I find it suspicious that Howard remembered that Botcheos swore at him, but
could not recall what he said. I credit Botcheos’ testimony that, as a boy scout leader and
salesman, he has made it a habit to avoid profanity.13 Finally, Hart, who witnessed the exchange
but could not hear all of it, observed there were no raised voices or any indication of violent
activity. Jourdan, who saw Howard just after the incident occurred, could not substantiate any 10
threat upon his investigation, and concluded discipline was not warranted.14 For these reasons,
and considering Howard’s clear antiunion animus, I do not credit either of his accounts regarding
what Botcheos said.
I find Botcheos’ testimony is also problematic. According to Jourdan’s investigation 15
notes, Botcheos told Howard he did not like him but they had to see each other at work. Any
place else they should just walk away. At the hearing, Botcheos recalled his statement as
follows, “I, you know, walked up towards him and stuff like this, and I -- you know, he said
very -- you know, forcefully said that, you know, this is personal. I just don't like you.” (Tr.
175.) As the Charging Party points out, “[i]t defies credulity that Howard would immediately 20
seek out his manager, and write the words found in his statement, if Botcheos merely said ‘I just
don’t like you.’” (CP Br. 9.) Howard had just interrupted Botcheos’ conversation with Hart to
suggest he inform her about decertification. For Botcheos to step aside with Howard merely to
say he personally dislikes him strikes me as implausible.
25
Who said what to whom the afternoon of February 22 remains unclear to me. The
Charging Party asserts that Howard’s actions of reporting the alleged threat to Jourdan and
making a statement render his testimony credible. For the reasons set forth above, I disagree.
The General Counsel contends Howard’s testimony was inherently credible, while Botcheos’
testimony was inherently less probable and was directed by leading questions from the Union’s 30
attorney. The arguments to support this contention, however, focus on the bulletin board
incident, not the alleged threats.
The General Counsel bears the burden to prove the threat occurred by preponderant
evidence. As the only evidence to support this allegation is testimony riddled with credibility 35
problems, I find this burden has not been met. Accordingly, I recommend dismissal of this
complaint allegation.

13 In making credibility resolutions, it is well established that the trier of fact may believe some, but
not all, of a witness’s testimony. NLRB v. Universal Camera Corp., 179 F.2d 749 (2d Cir. 1950).
Though I do not credit Botcheos’ testimony regarding much of the exchange, I found his testimony that
he does not use profanity to be clear, straightforward, and compelling.
14 The General Counsel asks that I draw an adverse inference based on the Union’s failure to call
Allison as a witness because she would have been disposed to testify favorably for the Union. Since the
testimony from Jourdan, a neutral, shows she did not hear the private conversation between Botcheos and
Howard, and Jourdan, no inference is warranted.
JD(SF)–39–14
12
CONCLUSIONS OF LAW
The Respondent did not violate Section 8(b)(1)(A) of the Act by removing materials
related to the rights of employees not to be members of Union and/or to objecting to the payment
of dues and fees for nonrepresentational activities from the employee bulletin board in the 5
drivers’ break room; informing employees that the Union would seek assistance from First
Student to prohibit the posting of the materials related to the rights of employees not to be
members of the Union and/or to object to the payment of dues and fees for nonrepresentational
activities on the employee bulletin board; and threatening an employee with bodily injury
because he made statements in opposition to the Union and/or informed other employees of their 10
rights not to be members of Union, to object to the payment of dues and fees for
nonrepresentational activities, and/or to petition for a union-security de-authorization election.
.
Accordingly, based on the foregoing findings of fact and conclusions of law and the
entire record, I issue the following recommended1515
ORDER
The complaint is dismissed.
20
Dated, Washington, D.C. July 28, 2014
__________________________
Eleanor Laws25
Administrative Law Judge

15 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.