Amalgamated Transit Union, Local 689

National Labor Relations Board - Administrative Judge Opinions

Aug 25, 2015

05-CA-141077 (N.L.R.B. Aug. 25, 2015)

JD–47–15
Forestville, MD
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
AMALGAMATED TRANSIT UNION,
LOCAL 689
and Case No. 5–CA–141077
TAMAR C. SIMMONS,
An Individual
Katrina H. Ksander, Esq., for the General Counsel.
Douglas Taylor, Esq., (Gromfine, Taylor & Tyler, P.C.),
Alexandria, Virginia, for the Respondent.
DECISION
STATEMENT OF THE CASE
Arthur J. Amchan, Administrative Law Judge. This case was tried in Washington, D.C.
on July 9, 2015. Tamara C. Simmons filed the charge initiating this case on November 17, 2014.
The General Counsel issued the complaint on March 25, 2015. The General Counsel alleges the
Respondent, by its President and Business Agent, Jackie Jeter, violated Section 8(a)(1) by
coercively instructing Tamar Simmons not to speak with fellow employees or shop stewards
about working conditions and implicitly threatening her with discharge because she caused the
Union to file grievances on her behalf.
The General Counsel also alleges that Respondent violated Section 8(a)((3) and (1) by
issuing 2 warnings to Tamar Simmons and discriminatorily issuing her a negative performance
evaluation. Respondent discharged Simmons in November 2014. However, her discharge is
before an arbitrator and is not before me.
On the entire record, including my observation of the demeanor of the witnesses,1 and
after considering the briefs filed by the General Counsel and Respondent, I make the following

1 Only two witnesses testified in this case, Simmons and Jeter. Jeter did not contradict Simmons’
testimony on any material point. Therefore, I credit Simmons.
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2
FINDINGS OF FACT
I. JURISDICTION
5
Respondent, the Amalgamated Transit Union, Local 689 is a labor organization
representing employees in the transportation industry, including employees of the Washington
Metropolitan Transit Authority (WMATA). Respondent employs employees, such as office staff
and collected dues and initiation fees during 2014 in excess of $500,000. Also in 2014,
Respondent remitted more than $5,000 to the Washington D.C. office of the International Union 10
from its main office in Forestville, Maryland. Respondent 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 and
that the Union representing its office administrative assistants, the Office Professional
Employees Union, Local 2, is a labor organization within the meaning of Section 2(5) of the Act.
15
II. ALLEGED UNFAIR LABOR PRACTICES
Tamar Simmons began working for Respondent as an administrative assistant in 2010.
Prior to September 2014, Respondent had given Simmons only 1 performance review. That was
done about the time of her 90th day of employment in 2010. Simmons filed a grievance in 2013 20
that was the subject of an arbitrator’s stipulated award in April 2014, G.C. Exh. 9. That award
provided that: 1) directives from the President/Business Agent of Local 689 were not to be
modified or countermanded by other ATU officials; 2) discipline of Local 2 members was to be
conducted privately, with an opportunity for a Local 2 official to attend; 3) verbal directives to
alert the President/Business agent to time limit concerns of a grievance were to be put in writing 25
and inserted into office procedure; 4) a written warning issued to Simmons was to be reduced to
a first verbal caution and removed from Simmons’ file and, 5) the award was without
determination or prejudice to the respective positions of any of the parties.2
On about September 8, 2014, Jackie Jeter, President and Business Agent of Local 689 30
held a staff meeting for the Union’s office employees. At that meeting she announced that a
number of tasks were no longer to be performed by Tamar Simmons, so that Ms. Simmons could
concentrate on answering the telephones. Among those tasks were logging in grievances,
handling incoming mail and keeping a huge bulletin board current. Some of the work performed

2 Simmons is romantically involved with Gerry Garnett, Second Vice President of Local 689. Garnett
is running for president of Local 689, the position currently held by Jeter. Respondent’s brief states at
page 3 that Garnett was removed from his position of Assistant Business Agent in 2014. There is no
evidence of this removal in the record. Respondent’s brief seems to suggest that Simmons 2013
grievance is connected to her relationship with Garnett. The record is silent on this as well.
It is black letter law that discrimination predicated on the protected activity of others, such as family
members, is as much a violation of the Act as discrimination against the employee who engaged in union
or other protected activity, Golub Bros. Concessions, 140 NLRB 120 (1962); Tolly’s Market, Inc., 183
NLRB 379 fn. 1 (1970); PJAX, 307 NLRB 1201, 1203-05 (1992) enfd. 993 F.2d 378 (3d Cir. 1993).
However, the General Counsel did not litigate the instant case on the theory that Jeter was retaliating
against Simons for the dissident union activity of Garnett. However the fact that there were no adverse
actions against Simmons until 2013 and the fall of 2014 certainly suggests a nexus between Jeter’s issues
with Garnett and her issues with Simmons.
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3
by Simmons prior to September 8, was to be performed by David Stephens, Respondent’s
communications director, who Respondent hired in June and Katherine Crawford, manager of
records, who had worked for Respondent for a number of years. Neither is a member of the
OPEIU Local 2 bargaining unit. In the President’s office, Local 2’s unit consisted of two
employees; Simmons and Shop Steward Debra Sanders.35
Office and Professional Employees Local Union 2 filed a grievance alleging a contractual
violation in the transfer of Simmons’ work to non-unit personnel on September 11. While Local
689 President Jeter did not see the grievance on September 11, on that date she was aware that it
was being filed.10
On September 12, at a step 1 grievance meeting, Jeter asked Simmons why she filed a
grievance. Simmons replied that Jeter had given her work to non-bargaining unit employees.
Jeter responded that it was not Simmons’ work; that Crawford had performed these tasks before
Simmons was hired. The Union ultimately dropped Simmons’ grievance.15
Shortly after the step 1 meeting, Jeter interrogated Simmons as to when she took her
break. When Simmons went to Debra Sanders to discuss their break times, Jeter got very angry
at Simmons. Jeter told Simmons not to talk to Sanders about the break and complained that
every time Jeter addressed Simmons, Simmons filed a grievance. Jeter suggested that if 20
Simmons was unhappy at Respondent, she should quit.
Later that day, September 12, after a 10-15 minute meeting in Jeter’s office, Jeter gave
Simmons a warning letter for being argumentative and aggressive in her tone whenever
questioned about her work, G.C. Exh. 4. The next day, Jeter sent Simmons an email chastising 25
her for not keeping the main ATU bulletin board up to date. Jeter stated that nothing had been
updated or changed in what appeared to be over a year, G.C. Exh. 6.
On September 16, Jeter met with Simmons and gave her a performance review, G. C.
Exh. 7. This was the first performance review Simmons had received since 2010.4 Jeter rated 30
Simmons on a scale 1-5 in 29 job tasks. She gave Simmons a 1, the worst rating, in 20 of the 29
categories. During her meeting with Simmons, Jeter changed several ratings to a significantly
more favorable evaluation. For example Jeter changed Simmons’ rating for being productive
from a 1 to a 3.
35
Respondent discharged Simmons on about November 5, 2015. There is no evidence in
this record as to what led to the discharge and no evidence generally as to what transpired
between mid-September and November 5.
Analysis40
Respondent, by Jackie Jeter, violated in Section 8(a)(1)by telling Tara Simmons that if he
was unhappy working for Respondent, she should quit.

3 In June 2014, Respondent also hired Katie Traber as an assistant to the president.
4 Jeter gave other employees a performance review at about the same time. I find this has no bearing
on the outcome of this case.
JD–47–15
4
It is black letter Board law that an employer violates Section 8(a)(1), when in response to
protected activity, the employer tells an employee that he or she should quit or look for another
job. Such statements in this context are an implied threat that the employee may be discharged
for such activity in the future, Meeker Door, Inc., 357 NLRB No. 59 (2011); Paper Mart, 319
NLRB 9 (1995); Jupiter Medical Center, 346 NLRB 650 (2006). Thus, Jeter’s statement to 5
Simmons, which was precipitated by the filing of Simmons’ grievance(s), that “if you don’t like
it here, you can leave,” is a clear violation of Section 8(a)(1). The coercive nature of this remark
was exacerbated by Jeter’s subsequent observation that, “it’s either going to be me or you,
because I’m not leaving.”5
10
Respondent, by Jeter, violated Section 8(a)(3) and (1) by giving Simmons a bad
performance review, issuing her the September 12 warning and sending her the September 13
email chastising Simmons for inadequate upkeep of the ATU bulletin board.
In order to establish a violation of Section 8(a)(3) and (1), the Board generally requires 15
the General Counsel to make an initial showing sufficient to support an inference that the alleged
discriminatee’s protected conduct was a ‘motivating factor’ in the employer’s decision. Then the
burden shifts to the employer to demonstrate that the same action would have taken place even in
the absence of protected conduct, Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 889 (lst
Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management 20
Corp., 462 U.S. 393, 399-403 (1983) ; American Gardens Management Co., 338 NLRB 644
(2002). Unlawful motivation and animus are often established by indirect or circumstantial
evidence.
In order to make a sufficient initial showing of discrimination, the General Counsel must 25
generally make an initial showing that (1) the employee was engaged in protected activity; (2)
the employer was aware of the activity; and (3) that animus towards the protected activity was a
substantial or motivating reason for the employer’s action.
In this case there is no question but that Simmons engaged in protected activity, filing a 30
grievance over the change in her duties, and that Respondent of aware of this. Thus, the issue
with regard to the performance review that Jeter gave to Simmons, the warning and the
reprimand, is whether they were motivated in whole or in part by Simmons’ protected activities
in filing a grievance. Since Simmons had worked since 2010 without a performance review and
there is absolutely no evidence that her job performance was inadequate between 2010 and 2014, 35
I find that the bad performance review was motivated by Simmons’ protected activities (and
maybe Garrett’s as well).6
The same is true for the email reprimanding Simmons for failing to keep the bulletin
board current. Jeter’s allegation that the bulletin board had not been updated for over a year is 40
compelling evidence of discriminatory motive. If that assertion is true, then it establishes that

5 Although the transcript does not read this way, it is likely that Jeter said something to the effect that
it is going to be either me or you, and it’s going to be you, because I am not leaving. Jeter did not
contradict Simmons as to the essence of this conversation.
6 In the absence of any documentation, I decline to credit Jeter’s self-serving testimony regarding
Simmons’ job performance.
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5
upkeep of the bulletin board was never an issue for Jeter until Simmons filed the September 2014
grievance. The timing of this reprimand establishes its retaliatory nature in the absence of any
persuasive alternative. Jeter’s testimony that she did not notice the condition of the bulletin
board until September 2014 is unpersuasive. Even assuming that was true, it indicates that Jeter
was scrutinizing Simmons’ job performance more closely as a means of retaliation for her 5
protected activity.
Likewise, Jeter’s warning to Simmons for being constantly argumentative violated
Section 8(a)(3) and (1). The evidence of record, to the extent that it establishes that Simmons
was argumentative, establishes that the subjects of the arguments were either 1) the alleged 10
transfer of her bargaining unit work to non-unit employees, or 2) the timing of her break. In
either case, they involved the terms and conditions of her employment.7 There is no evidence on
which to find that Simmons sacrificed the protections of the Act by her conduct, pursuant to the
criteria set forth in Atlantic Steel Co., 245 NLRB 814 (1979).
15
Respondent violated Section 8(a)(1) in telling Simmons not to talk to Debra Sanders
about the change in her duties or her break times
As a general proposition an employer violates Section 8(a)(1) when it forbids employees
to discuss working conditions or union matters with other employees, when it does not prohibit 20
the discussion of non-work related matters while on duty. Since there is no evidence that
Respondent prohibited the discussion of non work-related matters, Jeter’s statements to Simmons
not to talk to Sanders about their respective break times, violates the Act on this basis alone.
I am not sure that the cases cited by the General Counsel are relevant to this case, since 25
the record suggests that Simmons went to speak with Sanders on work time, not break time.
Conclusions of Law
Respondent violated Section 8(a)(1) of the Act in coercively instructing Tamar Simmons30
not to talk to fellow employees about their break times and implicitly threatening to discharge
her for causing Local 2, Office Professional Employees Union Local 2 to file a grievance on her
behalf.
Respondent violated Section 8(a)(3) and (1) by issuing two disciplinary warnings to 35
Tamar Simmons and giving her a very unfavorable performance appraisal.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
40

7 Employee breaks are a term and condition of employment and indeed are a mandatory subject of
bargaining, Rangaire Co., 309 NLRB 1043 (1992).
8 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.
JD–47–15
6
ORDER
Respondent, Amalgamated Transit Union, Local 689, its officers, agents, successors, and
assigns, shall
5
1. Cease and desist from
(a) Instructing employees not to discuss their terms and conditions of
employment with other employees.
10
(b) Implicitly threatening employees with discharge for engaging in
protected activities, including the filing of grievances.
(c) Discharging or otherwise discriminating against any of its employees for
engaging in and/or planning to engage in protected concerted activities, including the filing of 15
grievances.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights under Section 7 of the Act.
20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days from the date of the Board's Order, remove from its files any
reference to the unlawful disciplinary warnings/reprimands issued to Tamar Simmons and the
poor performance review given to Tamar Simmons, and within 3 days thereafter notify her in 25
writing that this has been done and the warnings/reprimand and performance review will not be
used against her in any way.
(b) Within 14 days after service by the Region, post at its Forestville, Maryland
facility copies of the attached notice marked "Appendix".9 Copies of the notice, on forms 30
provided by the Regional Director for Region 5, after being signed by the Respondent's
authorized representative, shall be posted by the Respondent and maintained for 60 consecutive
days in conspicuous places including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the notices shall be distributed
electronically, such as by email, posting on an intranet or an internet site, and/or other electronic 35
means, if the Respondent customarily communicates with its employees 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. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to 40
all current employees and former employees employed by the Respondent at any time since
September 12, 2014.

9 If this Order is enforced by a judgment of the 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.”
(c) Within 21 days after service by the Region, file with the Regional Director a
sworn certification of a responsible official on a form provided by the Region attesting
steps that the Respondent has taken to comply.
Dated, Washington, D.C., August 25, 20155
10
7
___________________
Arthur J. Amchan
Administrative Law Judge
JD–47–15
to the
__
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the
National Labor Relations Board
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT threaten you with discharge or discipline for engaging in protected activity.
WE WILL NOT prohibit you for discussing with other employees the terms and conditions of
your employment.
WE WILL NOT discharge, discipline or otherwise discriminate against any of you for engaging
in or planning to engage in protected concerted activity, including seeking to have grievances
filed on your behalf.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the
exercise of the rights guaranteed you by Section 7 of the Act.
WE WILL, within 14 days from the date of this Order, remove from our files any reference to
the unlawful disciplinary warnings/reprimands issued to Tamar Simmons and her poor
performance review, and WE WILL, within 3 days thereafter, notify her in writing that this has
been done and that the warnings/reprimands and performance review will not be used against her
in any way.
AMALGAMATED TRANSIT UNION, LOCAL 689
___________________________________________
(Employer)
Dated ______________ By ______________________________________________________
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce
the National Labor Relations Act. It conducts secret-ballot elections to determine whether
employees want union representation and it investigates and remedies unfair labor practices by
employers and unions. To find out more about your rights under the Act and how to file a charge
or election petition, you may speak confidentially to any agent with the Board’s Regional Office
set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
Bank of America Center, Tower II, 100 S. Charles Street, Ste 600, Baltimore, MD 21201-4061
(410) 962-2822, Hours: 8:15 a.m. to 4:45 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/05-CA-141077
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.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF
POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS
PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (410) 962-2864.