Office Employees

National Labor Relations Board - Board Decisions

Apr 27, 1992

307 N.L.R.B. 264 (N.L.R.B. 1992)

264
307 NLRB No. 39
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard 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.
We agree with the judge that International Representative
Connolly, an employee of the Respondent Union, was engaged in
union activity in running for office and that the Respondent violated
Sec. 8(a)(3) and (1) of the Act by discharging him as an employee
‘‘because he exercised his right as a member of Local 6 to run for
office in that local.’’ In running for office, Connolly was seeking to
become a member of the internal government of Local 6, a position
in which he could play a role in collective bargaining and in the rep-
resentation of Local 6 members. By discharging Connolly in an at-
tempt to discourage him from engaging in those union activities, the
Respondent violated Sec. 8(a)(3) and (1). Further, we find no merit
in the Respondent’s contention that the Board’s decision in Retail
Clerks Local 770, 208 NLRB 356 (1974), requires a different result.
In that case, the Board reversed the judge’s finding of an 8(a)(3) dis-
charge on the ground that an employee of a union ‘‘has no protected
right to engage in activities designed solely for the purpose of influ-
encing or producing changes in the management hierarchy.’’ Id. at
357. In the present case, unlike in Retail Clerks, Connolly was not
an employee trying to influence or change the management hierarchy
of his employer (the International), but a member running for office
in his own local union. Because the Respondent discharged Connolly
for his activities as a union member, activities wholly unrelated to
his duties as an employee, we find Retail Clerks inapposite.
2 The Respondent excepts to the judge’s findings that Connolly’s
October 12, 1988 letter protesting International President Kelly’s
order forbidding weekend travel by International representatives con-
stituted concerted activity. In this regard, the Respondent asserts that,
assuming International representatives Orr and Kirby’s versions of
the events at issue are true, the letter did not constitute concerted
activity because neither Orr nor Kirby joined Connolly in protesting
the order. We disagree. Even assuming that the Respondent’s version
of events is correct, Kirby, on being informed of the new policy,
stated to Connolly that ‘‘the way it [Kelly’s directive] sounds, I
don’t really agree with it.’’ Further, when Connolly said that he was
thinking about writing a letter to Kelly about the policy, Kirby did
not discourage him, but said that he [Kirby] would call the Inter-
national. In these circumstances, where Kirby clearly shared
Connolly’s concern about the travel policy, knew that Connolly was
going to write a letter to the International about it, and where the
letter by its contents informed Kelly that Connolly was expressing
the concerns of other employees as well as his own, we find, for
the reasons given by the judge, that the letter was a logical out-
growth of Connolly’s discussion with Kirby and that it constituted
concerted activity.
Office and Professional Employees International
Union, AFL–CIO and John B. Connolly. Case
1–CA–25940
April 27, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On June 18, 1991, Administrative Law Judge Ben-
jamin Schlesinger issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel resubmitted to the judge his brief
in support of the judge’s decision.
The National Labor Relations Board had delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions,2 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Office and Professional
Employees International Union, AFL–CIO, New York,
New York, its officers, agents, and representatives,
shall take the action set forth in the Order.
William F. Grant, Esq., for the General Counsel.
Joseph E. Finley, Esq., of Baltimore, Maryland, for the Re-
spondent.
John B. Connolly, of Manomet, Massuchusetts, for the
Charging Party.
DECISION
Findings of Fact and Conclusions of Law
BENJAMIN SCHLESINGER, Administrative Law Judge. Re-
spondent Office and Professional Employees International
Union, AFL–CIO (Respondent or International) discharged
Charging Party John B. Connolly on October 31, 1988. The
complaint in this unfair labor practice proceeding, which
issued on September 11, 1989, alleges that Respondent vio-
lated Section 8(a)(3) and (1) of the National Labor Relations
Act, 29 U.S.C. § 151 et seq., because of Connolly’s con-
certed and protected activities of protesting having to remain
away from home on weekends and his union activities in
running for office in Respondent’s Local 6. Connolly filed
his unfair labor practice charge against Respondent on No-
vember 14, 1988, and the hearing was held in Boston, Mas-
sachusetts, on February 20–22, 1990.
Jurisdiction is conceded. Respondent admits, and I find,
that it is a labor organization, an unincorporated association,
with an office and place of business in New York, New
York, and with other places of business throughout the
United States, including New England, where it is engaged
in the business of a labor organization, representing employ-
ees in bargaining with employers with respect to wages,
hours, and other terms and conditions of employment.
Annually, Respondent collected and received revenues,
dues, and initiation fees in excess of $50,000 directly from
points outside New York. I conclude that Respondent is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act. I also conclude that Office
and Professional Employees International Union, Local 6,
AFL–CIO (Local 6), is a labor organization within the mean-
ing of Section 2(5) of the Act. Connolly was employed by
Respondent in 1976 as an International representative. He re-
ported to Respondent’s director of organizing and was re-
sponsible for servicing various New England local unions
which did not have full-time representatives to handle their
265OFFICE EMPLOYEES
negotiations of contracts and processing of grievances and
arbitrations. In late 1984 Connolly became the assistant di-
rector of organization and was assigned to organize the pro-
fessional staffs employed at the Boston and Amherst cam-
puses of the University of Massachusetts (UMass), as well
as the medical center in Worcester. That campaign ended un-
successfully in May 1986 with a loss in an election con-
ducted by the Massachusetts Labor Relations Commission.
Following that, Connolly continued to process challenges and
unit rulings and began to plan for future organizing efforts,
including making an assessment of a second try for the cler-
ical and secretarial employees of the Cook County court sys-
tem in Chicago, where he had led an unsuccessful campaign
in 1984.
Connolly continued to perform various assigned functions
for Respondent but resigned his position in October 1986
after another unsuccessful campaign, this time at the Bucks
County Community College in Pennsylvania, and returned to
being an International representative. Thereafter, he worked
on a proposed merger of Respondent’s locals in Maine and
New Hampshire; and in about February 1987 he was as-
signed to take over from another International representative,
who was to work as a full-time organizer for a Blue
Cross/Blue Shield campaign, the function of servicing all the
locals in the Northeast.
His employment during 1987 was unexceptional. At the
end of the year he received a bonus of 1 week’s pay and
some time after he received a wage increase for 1988. On
or about May 20, 1988, Connolly announced to James
Mahoney, Local 6’s business manager and an International
vice president, that he was interested in running for the of-
fice of the Local’s secretary-treasurer. Mahoney questioned
why Connolly would want to run for that position, indicating
that the incumbent had no intention of resigning. He asked
whether Connolly would be interested in running for another
position such as recording secretary or for the business man-
ager of another local union. Connolly said that he was not
interested in another position. He wanted to get into a ‘‘con-
stitutional position’’ in Local 6 and succeed Mahoney when
he retired, because there were no experienced people in
Local 6. Mahoney promised to get back to Connolly.
It is Connolly’s threat to the institution that the General
Counsel contends was one of the reasons for the alleged dis-
crimination which is the subject of the complaint. In late Au-
gust, Connolly was assigned by Mark Reader, Respondent’s
director of organizing, to report to Respondent’s locals which
had agreements with the Tennessee Valley Authority (TVA)
to put on one-on-one internal organizing programs. Reader
told Connolly that the program was intended to increase Re-
spondent’s membership, which in those right-to-work States
had decreased to much less than 50 percent, in some cases
as low as 10 percent. Reader said that Connolly would be
in Tennessee for 5 or 6 months. Connolly questioned the
choice of him, and Reader somewhat agreed, noting that
Connolly’s thick Boston accent might not be received too
well in the South. Reader said that he was going to try to
dissuade Respondent’s president, John Kelly, from sending
Connolly, but Reader called back to say that Kelly wanted
Connolly in Tennessee right away. Connolly said that he
‘‘smell[ed] a rat’’ because he had made known his intention
to run for the Local 6 office, and the timing was such as to
interfere with nominations, which were going to be held in
early October. Reader promised to continue to discuss the
matter with Kelly, but Kelly wanted Connolly to go.
Connolly told Reader to tell Kelly that he would be
‘‘thrilled’’ to go to Tennessee; and Reader called back to say
that he had relayed the message to Kelly, who said: ‘‘[D]on’t
come home every weekend.’’
Connolly testified that in all his prior work experience
when he was assigned to work out of town, he had always
come home on the weekends, and he was never restricted
from returning home on the weekends. He admitted that the
International for years had a rule about not returning on
weekends, but said that the rule had been uniformly ignored.
No one testified to the contrary, but Bill Kirby, another Inter-
national representative, acknowledged that he did not go
home when he was working on an ongoing campaign which
required him to remain away. In any event, Connolly trav-
elled to Knoxville on the day after Labor Day 1988, and
talked with Faye Orr, the International representative as-
signed to Tennessee, about where he was to be based. Orr
said that he could use her office in Chattanooga and that he
was not going to be able to accomplish very much on the
one-on-one program because the employees were much more
interested in how the ongoing negotiations with the TVA
were progressing than with this new program. Because
Connolly could not get started with that program, she asked
him to take over negotiations for a manufacturing company
in Chattanooga. Connolly agreed to do so, as long as Reader
and Kelly concurred.
Connolly went home that weekend, Friday, September 9,
and began to prepare papers for his campaign for secretary-
treasurer. He did not return to Tennessee the following week,
suffering a ‘‘spell’’ which resulted in his having to take a
stress test. During the week, on September 16, Reader tele-
phoned him to say that Kelly no longer wanted Connolly to
spend 5 or 6 months in Tennessee but wanted him to prepare
for two 2-weekend programs. Connolly questioned the
change of plans, indicating that the logistics alone would
take much longer than two weekends. Nonetheless, Reader
ordered that these programs commence immediately.
Connolly said that he was suspicious of the change and that
he was going to write a letter about it. He did so, to Kelly,
complaining of receiving a harassing telephone call from
Reader and questioning what Kelly wanted of him, and
when, and accusing that: ‘‘This confusion or indecision
makes me suspicious that local and internal political consid-
erations or even outright discrimination may have been a fac-
tor in my being reassigned to TVA et al.’’
Reader replied on September 27 that he had not intended
to harass Connolly and that Connolly had been assigned to
TVA because only a senior staff person could deal with the
complex issues. In the meantime Connolly continued to go
to Tennessee each week and return home each weekend,
where he worked (he testified) on his upcoming election
campaign. At a Local 6 meeting on October 4, Connolly was
nominated. He accepted the nomination in a phone call to
Mahoney the next day, during which he asked Mahoney for
an accurate account of Local 6’s membership so that he
could do a general mailing. He sent a followup letter to
Mahoney the next day. That day, also, Reader telephoned
Connolly to remind him of the earlier conversation about not
traveling on weekends; and Reader threatened that, if
Connolly did not stay in Tennessee that weekend, Kelly
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
might consider his going home insubordination. Connolly re-
plied that it was unfair for Reader to have called on a Thurs-
day for him to remain in Chattanooga over a long holiday
weekend (Columbus Day was to be celebrated that Monday),
when Connolly had a wedding to go to on Saturday, as well
as campaigning. Connolly mentioned the campaign in a letter
he wrote to Kelly that day, stating:
My instincts tell me that your reasons for insisting
that I stay in Chattanooga, are motivated by demands
from OPEIU Local 6 that I discontinue my campaign
to become Secretary-Treasurer of that local of which I
am a member.
The International Constitution gives me the right to
get fully involved in the affairs of the local in which
I carry my membership card.
Connolly went home that weekend and returned to Ten-
nessee the following Tuesday. He returned home the fol-
lowing weekend and received a letter from Kelly, dated Oc-
tober 6, stating:
It has come to my attention that you have been nom-
inated for office in OPEIU Local No. 6. As a member,
you have every right to seek election.
As you well know, your duties as International Rep-
resentative require you to be available to service all our
Locals in the United States. Should you be elected to
office in a Local Union, the duties of that office and
your present duties conceivably will not be compatible.
The only purpose of this letter is to make you aware
of the problems you may be facing in attempting to be
a Local Union Official and an International Representa-
tive.
In addition, the week before Connolly received a memo-
randum from Reader, which he wrote on October 6 (the
same day that Kelly wrote the above-quoted letter), stating:
When you are out-of-town on assignment and the as-
signment goes beyond one (1) week, representatives
should not plan on coming home every weekend.
This practice has raised organizing and servicing ex-
penses enormously and lengthened some assignments.
In the future, therefore, the International will only pay
for travel every other weekend.
Connolly spoke with Orr, who did not like this memo-
randum any more than did Connolly, who disliked it in-
tensely. Orr, however, did not join in what was soon to be
Connolly’s strong objection. She said that he was much more
of a rebel than she was. However, Connolly spoke with
Kirby, who said that he was going to call Kelly the first
thing on Monday morning and tell him what he thought of
the memorandum, that he did not mind being on the road 4
or 5 nights during the week, but he relished his weekends
home. Connolly said that he would be writing a letter, which
he did on October 12, complaining to Reader that he had
raised some questions about Reader’s memorandum with
some of the staff ‘‘and we feel very little thought was put
into something that would so drastically alter our life
styles.’’ He set forth estimated figures showing that the Inter-
national would actually lose money if the representatives
were to stay out of town, and he concluded:
Since there is no apparent savings, it can safely be as-
sumed that your directive is null and void unless polit-
ical retaliation was President Kellys’ [sic] only motive,
as I am the only representative immediately effected
[sic].
When Orr called Kelly earlier to protest the memorandum,
Kelly told her that his memorandum was too broad, that too
many complaints were being lodged against it, that Kirby
had called to complain, and that he had decided that the
memorandum should be ignored. But Kelly’s reply to
Connolly on October 19 was different:
You are right, John. I do want to drastically alter
your life style.
I do not think that it is fair to the people who pay
our salaries that you start to work on Tuesday and end
your work week on Thursday afternoon. I do not know
any of our members who have such a life style.
On this assignment, you have taken what should
have been done in four days and parlayed it into a 44-
day program. If you think that is saving money, you are
wrong. Your cute set of figures are just that—cute.
You know the old saying—‘‘Numbers don’t lie.’’
You can be assured that there was no ulterior motive
in my trying to have you do what you have been hired
for.
John, you have not taken to heart the two verbal
warnings you have received in your meetings with me.
I think that we better get together soon.
Connolly was not one who stepped lightly on the toes of
his superiors. He used sledgehammers. While stirring up a
confrontation over Kelly’s memorandum, he also started one
with Mahoney. Previously, he had asked Mahoney to tell
him how many members there were in Local 6, and
Mahoney had replied that there were about 3200. Connolly
checked Mahoney’s membership accounting to the Inter-
national’s secretary-treasurer and found that there was a dis-
crepancy. Connolly concluded that ‘‘something is wrong’’
and complained to Mahoney that: ‘‘The amount of monies
unaccounted for over the last 8 years could be in the hun-
dreds of thousands of dollars and the membership and myself
would like to know how it was expended.’’ He charged
Local 6’s executive board and trustees with being part of this
violation of the Local’s bylaws and International’s constitu-
tion and requested that Mahoney seek a voluntary trusteeship
or Connolly would seek an involuntary trusteeship.
Connolly also wrote to Kelly on October 24 complaining
about each and every allegation of Kelly’s October 19 letter,
quoted above. He specifically denied squandering members’
money and disputed the claim that he had been given two
verbal warnings. The next day, the Local 6 election was
held. Connolly was defeated by a huge margin, but indicated
to the person running one of the polls that he was unhappy
with the notice of election that had been given and would
probably be filing objections to the election. On October 28
Connolly wrote a letter to the executive board of Local 6 ex-
plaining his reasons for running, making a number of attacks
against Mahoney particularly, requesting internal union re-
267OFFICE EMPLOYEES
form, and threatening to challenge the results of the election.
At the same time, Reader sent Connolly a telegram, dated
October 28, summoning Connolly to a meeting at the Inter-
national’s headquarters on October 31, which Connolly did
not hear about until October 31.
Connolly immediately flew to New York. Before the meet-
ing with Kelly and his administrative assistant, he saw his
letter of discharge sitting on the desk and read it. The ensu-
ing meeting was short. Connolly said that it seemed to him
that he was going to end up in the trash heap, and Kelly re-
sponded that Connolly was not going to be the trash. Kelly
said that a letter was being prepared for Connolly, to which
Connolly replied, having already seen the letter, by calling
Kelly a ‘‘fucking asshole,’’ prompting Kelly to tell Connolly
to get out of his office. The letter that Reader sent to
Connolly on November 4 was the same as the one that
Connolly had seen, except that it added some lines character-
izing the argument that occurred on October 31.
Reader’s letter accused Connolly of having ‘‘a very nega-
tive, unproductive attitude which has clearly been reflected
in your work performance.’’ It criticized Connolly’s perform-
ance at UMass and Chicago ‘‘wherein you demonstrated an
inability to work with and direct staff in a cooperative ef-
fort.’’ It accused him of not having understood that his res-
ignation as ‘‘deputy’’ director of organization had been ac-
cepted provided that his performance and attitude improved,
but there has been no improvement. Instead, he antagonized
the local union leadership in the Bucks County Community
College campaign, and they requested that he not be reas-
signed to a rerun election. He took time off for illness when
he was in Tennessee, and accused Reader of harassing him
when Reader called to find out how Connolly was. He re-
fused to work weekends, even though Reader said that such
refusal would constitute insubordination. Reader concluded:
Overall, your record has set a poor example for the rest
of the staff. You seem to feel you can flaunt all the
rules and set your own agenda. This would not be toler-
ated in any organization, and it will not be tolerated
here. I am hereby terminating you effective imme-
diately.
I have little question that Respondent could have dis-
charged Connolly for a variety of legitimate reasons during
his term of employment. I will assume the worst about
Connolly, and I think that is probably warranted. There is no
question that he has a problem of some variety, but I am not
quite prepared to find, as Kelly charges, that Connolly was
an alcoholic and a philanderer. He certainly had a temper,
and from what I heard, it might be said say that he was
somewhat paranoic and that he lacked solid judgment in
some of his actions during election campaigns, unnecessarily
hurting and, more importantly, antagonizing people who
were vital to the success of his efforts and perhaps giving
Kelly some justifiable reasons to doubt Connolly’s wisdom.
But Respondent discharged Connolly no earlier than October
31, or even October 28, the date of Reader’s telegram to
Connolly ordering him to come to Kelly’s office; and this
proceeding involves whether Respondent really relied on all
the various acts of misconduct, going back a number of
years, or whether the timing of the discharge shows that
there were other reasons, violative of the Act, which Re-
spondent is trying to hide.
Counsel for the General Counsel contends that he estab-
lished a prima facie case of a violation. I agree. Connolly an-
nounced that he was going to run for office in May 1988.
A month before the nominations were to be held, which was
the commencement of the period for campaigning for office,
Connolly was assigned to Tennessee to run a program that
Reader estimated would last for 5 or 6 months, with instruc-
tions that he was not to come home every week. He was not
assigned earlier, although Orr had requested that the program
begin in July or August, well before the beginning of the
TVA negotiations. When Connolly was finally assigned, the
negotiations had begun; and all the people who would have
been important for Connolly to deal with were engaged in
that more important function. So Connolly, assigned from
Massachusetts, could do nothing on the program he was spe-
cially assigned to institute. Instead, Orr asked him to nego-
tiate a contract with a small local company. That was the
kind of job that would not have warranted him to be reas-
signed to Tennessee, and certainly the kind of job that would
not have required the International to institute a major
change of rules to prohibit Connolly from returning home on
the weekends, which would have hampered Connolly’s ef-
forts to conduct an effective election campaign. The reassign-
ment to Tennessee at this time becomes even more suspect
because no one could understand why Connolly was selected
for this particular project. Reader questioned the wisdom of
Connolly’s assignment, but he could not talk Kelly out of it.
There is enough here to support the inference that Connolly
was assigned to this project at this time, and under the rules
not to return home, because he was running for office.
Still, however, Respondent did not discharge him until
sometime later. In the meantime, Connolly was formally
nominated and within 2 days Kelly wrote him of the con-
sequences of holding two positions and Reader sent a new
directive permitting travel home only every other week.
Connolly had discussed with the two other union representa-
tives Kelly’s letter forbidding him to return home, leading to
his October 12 letter protesting the new work rule; and then
the election was held and he lost and he protested the con-
duct of that election, and only after that was he discharged.
The timing of those activities, and the reactions of Kelly in
sending Connolly out to pasture and forbidding him to come
home and then firing him only after Connolly threatened to
protest the conduct of the election is enough to persuade me
that at least the cause of his discharge was that he ran for
local office and he protested Kelly’s attempt to forbid him
to return home to run his election campaign.
The International contends that the Act does not protect
Connolly’s attempt to run for office in Local 6, but I can
find no reason why it should not. Connolly was a member
of that local, but he was an employee of the International.
As an employee, he was entitled to engage in self-organiza-
tion and to all the other rights provided by Section 7 of the
Act. Garment Workers, 131 NLRB 111, 112 fn. 2 (1961);
American Federation of Labor, 120 NLRB 969 (1958); Air
Line Pilots Assn., 97 NLRB 929 (1951). He was entitled to
engage in protected and union activities; and Respondent was
prohibited under Section 8(a)(1) and (3) of the Act from
doing anything to discourage him from engaging in those ac-
tivities. Garment Workers, 142 NLRB 82 (1963), moddified
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Strangely, although the complaint alleges a violation of Sec.
8(a)(3) of the Act, this particular allegation was not alleged with any
specificity. Instead, the complaint alleges only Connolly’s October
12 ‘‘concerted’’ complaint about remaining out of town. However,
the issue regarding Respondent’s alleged discharge of Connolly be-
cause he ran for local office was extensively litigated and briefed by
the parties and is ripe for decision.
339 F.2d 126 (2d Cir. 1964). The fact that Respondent is
also a labor organization does not negate my finding, be-
cause here it is an employer and the Act applies to it as it
does any other employer. Office Employees Local 11 v.
NLRB, 353 U.S. 313 (1957).
Connolly was disciplined not because he ran for office in
the International, but because he exercised his right as a
member of Local 6 to run for office in that Local. The Board
has previously found that running for office is a fundamental
right protected under Section 7 and the infringement of
which is prohibited by Section 8(a)(1) of the Act.1 Welfare
& Pension Funds, 251 NLRB 1241 fn. 2 (1980); Jacobs
Transfer, 201 NLRB 210 (1973); Carpenters Local 22
(Graziano Construction), 195 NLRB 1 (1972). Although I
have some doubts about whether, under current Board law,
such activity is concerted—the Board’s decisions do not deal
with that issue—I conclude that running for office in another
union election is patently union activity and that Respond-
ent’s discharge of Connolly for that reason violates Section
8(a)(3) and (1) of the Act.
Respondent contends that Connolly could not have been
disciplined for this reason because International representa-
tives were allowed to hold dual positions, as shown by the
record and some further admissions about Orr made in Re-
spondent’s brief. It may well be accurate that Respondent
had such a policy, but apparently no one objected to any
other representative running for local office. Here, Kelly ob-
jected that Connolly would have much difficulty in holding
both jobs. Furthermore, there is sufficient evidence to infer
that Mahoney objected to Connolly’s running for office and
that the International did not apply its usual policy to
Connolly because of that objection. He was the exception.
Because Connolly was running for office in Local 6,
Finnegan v. Leu, 456 U.S. 431 (1982), which Respondent
contends supports its position, is inapposite. That involved
Title I of the Labor-Management Reporting and Disclosure
Act of 1959 (LMRDA) and its guarantee of equal voting
rights and rights of free speech and assembly to every mem-
ber of a labor organization, and Title VI, which made it un-
lawful for a union to fine, suspend, or discipline any of its
members for exercising rights protected under that act.
There, the union’s appointed business agents were discharged
by the new president of the local, after the incumbent whom
the agents had supported was defeated. The court held that
the LMRDA’s legislative history showed that Title I was in-
tended to protect rank-and-file union members, and not ap-
pointed officials, and Title VI’s protection against discipline
referred only to retaliatory actions that affected a union
member’s rights or status as a member of the union. Obvi-
ously, that decision involves solely rights under the LMRDA,
whereas here the concern is with rights under Section 7 of
the Act. The Board has clearly held that certain protections
of the LMRDA are to be read into the Act and that discrimi-
nation against an employee because he engaged in intraunion
activity impairs his rights as an employee under the Act. Ja-
cobs Transfer, supra; Carpenters Local 22 (Graziano Con-
struction), supra.
I also conclude that Connolly’s protest of Kelly’s order
that he was forbidden to return home on the weekends was
protected and concerted activity. When Connolly received
Reader’s letter informing him of the new policy, he imme-
diately told both Kirby and Orr, both of whom liked the
order no more than Connolly did and both of whom pro-
tested directly to Kelly by telephone, as did Connolly by let-
ter. That letter advised that he had discussed the directive
with some of the staff and complained that the order would
alter ‘‘our life styles’’ and assumed, because there was other-
wise no saving of money to Respondent, that the directive
was ‘‘null and void.’’
Respondent alleges that Connolly was not engaged in pro-
tected and concerted activities and that his letter, by regard-
ing the directive that he remain out of town over the week-
ends as ‘‘null and void,’’ constituted insubordination. How-
ever, I read Connolly’s letter as only a complaint about the
new policy, particularly that it was not justified by any legiti-
mate reason, such as saving money, and that it seemed to be
imposed only against Connolly and only as a method of
keeping him away from home in retaliation for his attempt
for run for office in Local 6, in which event it was null and
void. That does not mischaracterize Board law, which does
not permit an employer from imposing new terms and condi-
tions of employment to retaliate against employees who are
engaged in acts protected by Section 7 of the Act. John Dory
Boat Works, 229 NLRB 844, 849–850 (1977); Reeves Bros.,
207 NLRB 51 (1973). Furthermore, I do not read his letter
as a declaration that he was denying the power of Respond-
ent’s president to execute such a directive for a legitimate
reason. Rather, Connolly was merely questioning, albeit in a
rather impolitic manner, the propriety of the rule. As such,
his letter was protected.
I also conclude that it was concerted, at least regarding to
the effect of the rule, which was to bar all of Respondent’s
representatives from going home over the weekends. He had
talked to the other two representatives about the new rule,
and they appeared to disagree with it. Although, admittedly,
no one authorized Connolly to write to Kelly and to say what
he did, Connolly was expressing all of their concerns with
the effect of the directive. His letter was an outgrowth of his
earlier conversations with both Orr and Kirby and was ‘‘a
continuation of that earlier protected concerted activity.’’
Jhirmack Industries, 283 NLRB 609 fn. 2 (1987). Contrary
to Respondent’s contention, Connolly did not need express
authorization from the other representatives in order to be en-
gaged in concerted activities. Connolly’s concerns were a
logical outgrowth of the concerns of Orr and Kirby, and that
is sufficient Board law to supply the authority of the other
two employees to his activity. Alchris Corp, 301 NLRB 182
fn. 4 (1991); Salisbury Hotel, 283 NLRB 685, 687 (1987);
Every Woman’s Place, 282 NLRB 413 (1986), enfd. 833
F.2d 1012 (6th Cir. 1987).
I conclude that the General Counsel has met his burden
and proved a prima facie unfair labor practice, considering
Respondent’s assignment of Connolly to Tennessee, the ini-
tial bar upon his travel, the two October 6 letters about run-
ning for office and traveling home, his protests about the
new rule and the election and Mahoney’s conduct, and the
timing of the discharge. However, the analysis of the facts
269OFFICE EMPLOYEES
2 Obviously, the 8(a)(1) allegation of concerted and protected ac-
tivities would not be supported by Reader’s admission. By October
6, Connolly had not talked with either Orr or Kirby to express his
complaints about Kelly’s new directive, and neither Kelly nor Read-
er would have had any idea that Connolly was engaged in a con-
certed activity.
3 Kelly’s testimony was inaccurate and distorted. Connolly never
called Kelly ‘‘cute.’’ That word was first used by Kelly in calling
Connolly’s analysis of his savings to the International a ‘‘cute set
of figures.’’
in this proceeding must take into account Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982); approved in NLRB v. Transpor-
tation Management Corp., 462 U.S. 393 (1983), which pro-
vides that Respondent may prove by a preponderance of the
evidence that it would have taken the same action against
Connolly as it took, regardless of whether it was also ille-
gally motivated by the employee’s union or protected activi-
ties.
I have no question that Connolly was guilty of much con-
duct which might have induced any employer to terminate
him. Connolly bred problems. But that is not the issue here.
The issue is what motivated Respondent to discharge
Connolly. On this issue, Respondent did not meet its burden
and actually strengthened the General Counsel’s case because
of the unfortunate circumstance that its witnesses Respondent
could not get their facts in order. They could not agree on
the timing of the discharge or on the reasons. Reader’s letter
discharging Connolly cites a variety of reasons for the dis-
charge, but Reader testified that the decision had been made
on October 6. Then Reader had called Connolly to remind
him of Kelly’s instructions not to travel home on the week-
ends and that Kelly wanted him to stay in Chattanooga that
weekend. Connolly declined to do so, and Reader reported
that to Kelly, who said ‘‘all right, that’s it, prepare the pa-
pers.’’ Although Reader stated that he prepared the discharge
letter during the ‘‘next week or so,’’ it took a month for the
letter to be signed and delivered, a rather casual method of
handling the discharge of one who had been insubordinate to
the president of an international labor organization. I find
that insubordination was not the true cause of the discharge,
when Respondent waited for almost a month to take action,
even to let Connolly know that he was an employee who was
expected to obey instructions from his superiors.
The delay is in sharp contrast with Respondent’s earlier
conduct. The same day that Reader recalled that Kelly had
instructed him to prepare the papers and only 2 days after
Connolly was nominated for Local 6 office, Kelly sent
Connolly his letter advising how the jobs of an international
representative and a local officer conflicted. That letter was
a rather implicit threat that Connolly could not perform both
jobs, and his success in the local’s election would jeopardize
his employment with the International. Also, that same day,
Reader sent his directive permitting travel home every other
weekend. Thus, the General Counsel’s case was supported by
Respondent’s reactions of October 6. Respondent was con-
cerned not with Connolly’s insubordination but with his run-
ning for office, the very gist of the complaint.2
Kelly’s testimony contradicted Reader’s, was internally in-
consistent and contradictory, and in important respects made
little sense. Kelly flatly denied Reader’s testimony, stating
that he could not even recall that Reader relayed that
Connolly was refusing to carry out Kelly’s direction. To him,
therefore, Connolly’s initial ‘‘insubordination’’ could not
have been the reason for the discharge. However, Kelly
could not arrive at any consistent reason for his action. He
first testified that he was provoked to discharge Connolly
upon receipt of Connolly’s letter declaring Kelly’s letter
‘‘null and void.’’ Although Kelly identified the date as Octo-
ber 25, 26, or 27, Connolly’s letter containing that language
is the letter of October 12, which Kelly must have received
before October 19, because that is the date that Kelly replied
to Connolly. In his reply, Kelly wrote only that he thought
that he and Connolly ought to get together soon, which Re-
spondent’s brief concedes was not an indication that
Connolly’s discharge was imminent.
Later in his testimony, Kelly referred to Connolly’s letter
calling him ‘‘cute’’3 as the one which precipitated the dis-
charge. The letter that Kelly identified was dated October 24
and was obviously different from the one which he first iden-
tified caused him to act. Kelly’s failure to recall what
prompted him to discharge Connolly, when combined with
Reader’s contradictory testimony, leads me to find that these
are not credible witnesses and that they have not supplied
under Wright Line the preponderance of the evidence suffi-
cient to overcome the General Counsel’s prima facie case. I
cannot find from their narrations what prompted the decision
and, even if I found some cause, I am left with an utter void
of why the International waited as long as it did to discharge
Connolly.
In addition to Respondent’s difficulties in explaining the
timing of its discharge of Connolly, Kelly in particular had
substantial problems in articulating why he did what he said
that he did. Each action that was explained to cure certain
of Connolly’s conduct was actually framed to do something
else. Nothing was written for the purpose of resolving what
the words clearly stated. For example, the letter prohibiting
weekend travel was not to be applied to Orr or to Kirby.
Their costs of returning home were less to the International
than if they remained at their work. It applied only to
Connolly, and, strangely enough, not solely for the purpose
which the letter seems to be trying to correct. According to
Kelly, the memorandum was written because of Connolly’s
trips home while on assignment. But Kelly also explained
that Connolly was a worker who started to work on Tuesday
and ended his week on Thursday. There is some evidence
which supports Kelly’s suspicions, but only as late as Octo-
ber 19 did he charge Connolly with this misconduct. Kelly
could have written to Connolly to direct him to work a full
week. He did not have to send out a general directive to all
the International representatives, nor did he have to send out
a letter requiring them to remain at work on the weekends.
In like fashion, Kelly explained that his letter of October
6 advising Connolly of the difficulties of maintaining his job
with the International if he were to be an officer of Local
6 was not intended to make him think twice about running
for office. Instead, Kelly wanted Connolly to know that
Kelly knew about Connolly’s habit of ducking work by hid-
ing out in the Local’s office pretending to perform functions
there. If that is so, Kelly’s letter was a curious way to inform
Connolly that he had not been performing all the assign-
ments that he was required to do. Furthermore, if Kelly knew
that Connolly had been hiding out so that he would not be
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Although Respondent contends that Connolly was demoted from
his position of assistant director of organization, Reader’s November
4, 1988 letter states that Connolly requested to be relieved from that
position, consistent with Connolly’s testimony that he did not like
the greater responsibilities of that job.
sent to other places, why he had not warned or disciplined
Connolly for his misconduct long before making known his
wishes to run for office? Similarly, while Kelly expressed
this rationale, he was also testifying that Connolly had not
the slightest chance of winning the election. If that was truly
his belief, there was no reason for him to write to Connolly
warning of the difficulties of maintaining two jobs. I cannot
credit Kelly’s explanations.
There are a number of other significant problems about
Respondent’s defense. The first is that Respondent dwelled
on the UMass campaign. No matter how badly run and no
matter how inept were Connolly’s decisions, that campaign
ended in 1986 and, I find, it was so remote it did not prompt
Kelly or anybody else to discharge Connolly. The second is
that, although Connolly’s employment was not absolutely
free of crisis, he remained an International representative,
servicing locals of Respondent, and carrying out the func-
tions for which he was employed, without reprimand or
warning. At the end of 1986 Respondent gave Connolly a
small increase, which Connolly thought was a reflection of
Respondent’s disappointment with the results of the UMass
campaign; but the letter is ambiguous and can be read that
the small increase was given because of the overall financial
condition of the International, and not because Connolly’s
performance was bad. In any event, there was no proof sup-
plied by Respondent that the bonus given to Connolly was
any less than that given to any other International representa-
tive.4 Otherwise, he was given raises in pay and was as-
signed to the one-on-one program allegedly because of his
senior status, his ability to deal with complex issues, and his
ability to write and to articulate the benefits of union mem-
bership. (These reasons contrast sharply with Kelly’s later
testimony that, before being assigned to Tennessee, Connolly
had never done any real work in years, despite warnings and
cajoling.) Third, to the extent that there was testimony about
Connolly’s shortcomings, including drinking, I simply do not
credit Kelly’s explanation that, because he had some problem
with alcohol 15 years before, he sympathized with
Connolly’s problems with alcohol and permitted him to per-
form badly for years.
For somewhat the same reasons, to wit, that Kelly’s testi-
mony does not make sense, so too are the disclaimers of
knowledge that Connolly was going to run for local office.
Mahoney was not only an officer of the Local but also a vice
president of the International and a member of its executive
board. Mahoney admitted that he told Kelly that Connolly
had placed his name in nomination, an admission that Re-
spondent itself finds unremarkable. In its brief, it states:
‘‘[A]ny rational observer familiar with the labor movement
would hardly find it unusual in the normal course of events
for a local union president who wanted to return his local in-
cumbent slate to office to notify the president of his inter-
national union that an international senior staff representative
was a candidate for local union office.’’
What I find is unusual and highly improbable is
Mahoney’s denial that he told Kelly of Connolly’s intentions
when Connolly first made them known. After all, Connolly
was an International representative who announced to
Mahoney that he was going to run against a member of
Mahoney’s team, the first time that there was a contested
election for Local 6 office. It is most probable that Mahoney,
who told Connolly that he was in for a fight, would have
wanted to put a stop to that election effort at its inception
and asked Kelly to ensure that Connolly did not run. How-
ever, Kelly must have known that it would have been impru-
dent, if not illegal, to threaten Connolly with the loss of his
job, and so Kelly did all that he could to help Mahoney,
without openly saying so. Thus it was that all of Kelly’s ef-
forts were directed to making Connolly’s running for office
uncomfortable, including the assignment to Tennessee, the
ban on traveling on the weekends, and the implicit threat that
local office and international representation simply did not
get along together.
The concerted activity of protesting the newly adopted
rule, which seemingly was directed solely at Connolly and
was exposed as such when Kelly caved in to the complaints
of the two other representatives, merely made Kelly more ad-
amant in his wish to get rid of Connolly. I might otherwise
have doubts that Kelly discharged Connolly for his concerted
protest, but Kelly testified that he did, that it was when
Connolly declared his order ‘‘null and void’’ that he told
Reader to prepare a letter to discharge Connolly. Because I
have found Connolly’s letter protected, Kelly’s testimony
constitutes an admission that the complaint was a reason for
the discharge. Respondent supplies no good reason why I
should not take Kelly at his word; and, although the narra-
tions of Reader and Kelly are certainly not mutually corrobo-
rative regarding the dates when Kelly gave his instructions
to terminate Connolly, this clearly supplies a reason for
Kelly’s action.
Finally, Respondent contends that Connolly’s conduct in
disputing the discharge was so outrageous that his discharge
was justified. When Connolly uttered his curses, he had al-
ready been terminated and his reaction, although obscene,
was a reaction to Respondent’s unfair labor practice. Even
though his language was offensive and vulgar, it was not so
extreme ‘‘as to render the individual unfit for further serv-
ice.’’ Dreis & Krump Mfg., 221 NLRB 309, 315 (1975).
Kelly endured Connolly’s conduct for years, and I see no
reason why this disagreement cannot be patched up as in the
past. Connolly is fit for further service, but this decision is
not intended to condone much of his activity. He has given
Respondent ample ammunition in the past to discipline him,
and for some reason that was not exercised. Here, he will be
reinstated to his job solely because Respondent did not
present a credible case to overcome the General Counsel’s.
In that sense, Connolly has ‘‘lucked out.’’ But should his
conduct continue, he may not be so lucky the next time.
Because Respondent has not proved by credible testimony
that it acted for any reasons other than ones which violated
the Act, I conclude that Respondent’s reasons were pretexts
and that there was no reason for discharging him other than
his protected and concerted activities. In any event, Respond-
ent has not sustained its burden of proof under Wright Line.
The activities of Respondent set forth above, occurring in
connection with Respondent’s operations described above,
have a close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend to
271OFFICE EMPLOYEES
5 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
6 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.’’
lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be ordered to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Specifically, I
shall recommend that Respondent offer Connolly immediate
and full reinstatement to his former position or, if that posi-
tion no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privi-
leges previously enjoyed, and make him whole for any loss
that he may have suffered as a result of Respondent’s dis-
crimination against him. Backpay shall be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), and interest shall be added thereto, to be computed
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Office and Professional Employees Inter-
national Union, AFL–CIO, New York, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Discharging its employees because they engage in pro-
tected and concerted and union activities which are protected
by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John B. Connolly immediate and full reinstate-
ment to his former position or, if that position no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him
whole for any loss of earnings he may have suffered as a
result of its discrimination against him in the manner set
forth in the section of this remedy section of this decision.
(b) Expunge and remove from its files any reference to the
unlawful discharge of Connolly on November 4, 1988, and
notify Connolly in writing that this has been done and that
evidence of his illegal discharge will not be used as a basis
for future personnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
Order.
(d) Post at its place of business in New York, New York,
copies of the attached notice marked ‘‘Appendix.’’6 Copies
of the notice, on forms provided by the Regional Director for
Region 1, after being signed by Respondent’s representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT discharge our employees because they en-
gage in protected and concerted and union activities which
are protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer John B. Connolly immediate and full rein-
statement to his former position or, if that position no longer
exists, to a substantially equivalent position, without preju-
dice to his seniority or other rights and privileges, and make
him whole for any loss of earnings he may have suffered as
a result of our discrimination against him, with interest.
WE WILL remove from our files any reference to the un-
lawful discharge of John B. Connolly on November 4, 1988,
and notify him in writing that this has been done and that
evidence of his illegal discharge will not be used as a basis
for future personnel action against him.
OFFICE AND PROFESSIONAL EMPLOYEES
INTERNATIONAL UNION, AFL–CIO