Liberty Coaches, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 100, Transport Workers Union of America, AFL-CIO (Liberty Coaches, Inc.) and Miguel Simms. Case 2-CB-6386 June 27, 1977 DECISION AND ORDER BY MEMBERS JENKINS, MURPHY, AND WALTHER On March 23, 1977, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respon- dent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed by Miguel Simms on September 7, 1976, a complaint, dated October 22, 1976, was issued alleging that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(XA) of the National Labor Relations Act, as amended. In substance, the complaint alleges that on June 21, 1976, Union Agent Kevin McGarvey filed intraunion charges against Miguel Simms claiming that Simms had violated the Union's constitution by filing unfair labor practice charges against it with the National Labor Relations Board; on July 1, 1976, a union hearing was conducted with respect to said charges; on August 19, 1976, Simms was expelled from membership in the Union; and thereby the Union has restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act. Respondent duly filed an answer denying that it had engaged in the alleged unfair labor practices and asserting as an affirmative l General Counsel's and Respondent's motions to correct the transcript of record are hereby granted. 230 NLRB No. 83 defense that the decision to expel Miguel Simms from the Union was reversed upon appeal. A hearing in this proceeding was held on January 6 and 7, 1977, in New York, New York. Briefs have been filed with the Adminis- trative Law Judge on behalf of General Counsel and Respondent.1 Upon the entire record in this case, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Local 100, Transport Workers Union of America, AFL- CIO, herein referred to as the Union, is a party to a collective-bargaining agreement with Liberty Coaches, Inc., herein called the Employer or the Company. Liberty Coaches, Inc., a New York corporation, which maintains its principal office and place of business in Yonkers, New York, is engaged in providing bus transportation services to the public. During the calendar year 1976 the Company, in the course and conduct of its operations, derived revenues in excess of $250,000 and purchased goods and materials valued in excess of $50,000, of which in excess of $5,000 were shipped to its New York facility through channels of interstate commerce from locations outside the State of New York. The complaint alleges, Respondent admits, and I find that the Company is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7), of the Act, and the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Miguel Simms, who was employed by Liberty Coaches, Inc., and who then was a member of the Union, was discharged on May 11, 1976. Simms filed a grievance with the Union protesting his discharge. The grievance was submitted to arbitration before Arbitrator Theodore W. Kheel. On August 17, 1976, the arbitrator issued an award sustaining discharge. Stemming, in part at least, from incidents discussed in the opinion of Arbitrator Theodore W. Kheel, two sets of intraunion charges were filed against Simms. The first, dated June 9, 1976, was filed by the Union's section chairman, Cosmo De'Alesio, and the second, dated June 21, 1976, was filed by Union Organizer Kevin McGarvey. The first set of charges read as follows: As the elected section chairman of Section 704 (Liberty Coaches, Inc.) Westchester Division, I wish to bring the following charges based on violations of our constitution and by-laws against Brother Miguel Simms, member of Section 704: 1. Removing official union literature from union bulletin board. (Art. 19, Section 5, Consti- tution) 2 Special proceedings have been instituted to vacate the arbitrator's award. 536 LOCAL 100, TRANSPORT WORKERS 2. Accepting written and verbal grievances from fellow members without authority. (Art. 19A, by- laws) 3. Continuous opposition against the estab- lished grievance procedure. (Art. 19, Section 5 o, Const.) 4. Threatening bodily harm against me if I do not resign as elected Chairman of Section 704. (Art. 19, Section 5m, Const.) 5. Continuously harrassing and interrupting grievance hearings and union management dis- cussions. (Art. 19, Section 5h) 6. Threatening job action without union author- ity. (Art 20A, by-laws, Art. 19, Section 5A, Const.) 7. Threatening bodily harm against members who disagree with his tactics. (Art. 19, Section 5A, Const.) All of these charges occurred approximately during the period February 15 through May 7, 1976. The second set of charges read as follows: As the organizer assigned to the Westchester Divi- sion (private Lines) I request you bring the following charges against Brother Miguel Simms of Section 704 (W.C.): 2/26/76 - Violation of Article 19, Section 5c (Constitution) National Labor Relations Board Case # 2 C.B. - 6107 6/10/76 - Violation of Article 19, Section 5c (Constitution) Violation of Article 17b, (By-Laws) Filed charge before N.L.R.B. against local of violating section 8, National Labor Relations Act. 3 A hearing with respect to the charges against Simms was held on July 1, 1976, and the next day the following report was prepared: Report on Sub-Committee Hearing pertaining to charges against Brother Miguel Simms for alleged violations of the Constitution and ByLaws of Local 100. Hearing was called to order at 5:05 pm on July 1, 1976 by the Chairman of the Sub Committee. The member charged was present and was represented by Brother M. Stern, member of Section 704, Westchester Division. The charges were submitted by Cosmo De'Alesio, Section 704 Chairman and consisted of seven charges. They were read by the Chairman and the accused Brother Miguel Simms represented by Brother Stern then stated they would not respond to the charges as they felt they were not presented with more specifics of the charges before the hearing. Brother Stern asked the committee if there would be another hearing on the charges to give them more opportunity 3 On December 17, 1975, Miguel Simms filed an unfair labor practice charge against the Union which was assigned Case 2CB-6107. and, on May 6, 1976, Simms filed a second unfair labor practice charge against the to prepare a case. The chairman stated there would be no future meeting of the committee and that the member charged had received all the information necessary on the charges to be prepared to respond to them at this hearing. The committee then proceeded to go over all the charges starting with the charges brought by Brother Cosmo De'Alesio which consisted of seven separate charges. Brother De'Alesio stated his reasons for each charge and the Chairman asked Brother Stern if they would respond after each charge was heard and he responded NO. The committee then took up the charges brought against Brother Simms by Brother Robert Martin, Recording Sec of Section 704. Brother Martin ex- plained why he brought the charges against Brother Simms and again the Chairman asked Brother Stern to respond to the charges and again he said NO. The Chairman stated to Brother Stern that in fairness to Brother Simms whom he was representing there should be some response to the charges. Brother Stern stated he felt the Hearing was prejudicial to Brother Simms and for the third time stated they were going to leave the Hearing. The Chairman then stated they could not hold them there against their will but if they left the Hearing the remaining charges would continue on. Brothers Simms and Stern then left the Hearing Room. The remaining charges which were brought against Br Simms by TWU Organizer, Kevin McGarvey were heard by the committee and in addition two charges from the National Labor Board were presented as evidence. The Chairman then closed the Hearing at 7:00 pm. The Committee feels Brother Simms is guilty of all the charges submitted and makes the following recommen- dations: (1) Brother Union Office. (2) Brother Probation. Simms be barred from ever holding Simms be placed on Five (5) Year Committee: /s/ Frank McCann Frank McCann H. Behrens /s/ F. Barrett F. Barrett The report was considered at the Union's executive board meeting held on July 7, 1976. It was amended to revoke the membership of Miguel Simms in the Union as of July 7, 1976, "but in no way to prevent him from working." As amended it was unanimously approved. By letter dated August 19, 1976, Simms was advised of the Union which was assigned Case 2-CB-6253. The first charge was withdrawn and the second charge was dismissed. 537 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action taken against him. Simms duly appealed therefrom in accordance with the provisions of the constitution of the Transport Workers Union of America, AFL-CIO. On appeal, the action of the Union was reversed. By letter dated October 7, 1976, from William G. Lindner, interna- tional vice president and acting chairman of the committee on appeals, Simms was duly notified and was transmitted a copy of the decision on appeal, which is as follows: INTERNATIONAL COMMITTEE ON APPEALS DECISION APPEAL #73-44 MIGUEL SIMMS LOCAL 100 The International Committee on Appeals has reviewed the appeal of Miguel Simms and its decision and recommendation is as follows: 1. That the action of the Local 100 Executive Board expelling Simms be rescinded for the following reasons: a. That the charges filed by Brothers De'Alesio and Martin failed to meet the requirements of Article XIX, Section I of the TWU Constitution in that they were lacking in specifics. b. Furthermore, the charges by Brother McGar- vey violated the National Labor Relations Act. A members' right to complain to the National Labor Relations Board is protected by law regardless of the merits of the complaint and this charge by Brother McGarvey is dismissed. 2. That the charges referred to in I, a. above filed by Brothers De'Alesio and Martin be referred back to the Local 100 Executive Board for clarification of specifics and a retrial before a new trial committee appointed by the Local Executive Board. 3. No new charges may be added to the charges in question because of the 60-day time limitation in Article XIX, Section 2 of the TWU Constitution. 4. The employer, Liberty Coach, charged Simms with participation in the May 10, 1976 work stoppage. Those charges were appealed to Impartial Arbitrator Theodore Kheel by Simms and TWU defended Simms in the arbitration proceedings. The Impartial Arbitra- tor's decision was that Simms be dismissed. Simms is consequently no longer employed in the Transit industry and not eligible for membership in the TWU per Article III Section 1 of the TWU Constitution. Pertinent to the issues herein are the following provisions of the constitution of the Transport Workers Union of America, AFL-CIO: representatives and employees of the International Union and of any Local Union are eligible for membership. [Emphasis supplied.] ARTICLE Xlil. Section 9. (a) A member in good standing who leaves the industry or who is furloughed for more than 90 consecutive days shall receive upon application made through and certified by his Local Financial Secretary- Treasurer a withdrawal card from the International Union and he shall be reinstated to membership without the payment of a fee upon his becoming eligible again. ARTICLE XIX. Discipline Section 1. A charge by a member or members in good standing that a member or members have violated this Constitution or engaged in conduct unbecoming a member of the Union must be specifically set forth in writing and signed by the member or members making the charge. The charge must state the exact nature of the alleged offense or offenses and, if possible, the period of time during which the offense or offenses allegedly took place ... Section 2. Charges must be submitted to the Recording Secretary of the Local Union within sixty (60) days of the time the complainant first became aware, or reasonably should have been aware, of the alleged offense ... Section 3. Upon charges being submitted, it is mandatory that a trial be held ... * * * Section 5. The following enumerated acts are set forth as typifying conduct unbecoming a member of the Union. This enumeration shall not be construed to exclude from disciplinary action other forms of unbe- coming conduct. * * S (c) Maliciously instituting, or urging or advocat- ing that a member of any Local Union institute action in a court against the International Union or any of its officers or against any Local Union, or any of its officers without first exhausting all remedies through the forms of appeal of the International Union.... ARTICLE XX. ARTICLE II1. Section 1. All working men and women, regardless of race, creed, color or nationality, employed in, on or about any and all passenger or other transportation facilities, or public utilities and allied industries, and in any other employment which the International Execu- tive Council decides is appropriately within the juris- diction of the International Union, and officers, staff Trial of Members Section 1. In the event that the Local Executive Board decides that the charges warrant a trial, the Local Executive Board shall elect a Trial Committee of three members in good standing and shall designate a member in good standing to present the charges before the Trial Committee. The members of the Trial Committee shall be selected by the Executive Board specifically for the trial of such charges and no officer 538 LOCAL 100, TRANSPORT WORKERS or member who is a party or directly interested in such charges shall act as member of the Trial Committee. 4, * * the Local Union to compensate the appellant for any loss incurred as a result of the reversed or modified decision. Section 4. The accused shall have the right to be represented before the Trial Committee by any member of the Local Union in good standing. In the event that the accused fails to appear at the hearing at the time and place provided in the notice served upon him, and presents no acceptable excuse for absence, the hearing shall proceed with the same force and effect as if he were present. * * Section 6. The Local Executive Board shall take such action on the report of the Trial Committee as it may deem proper, and, in the event the accused is found guilty of the charges preferred against him, shall impose such penalties as in its judgement it may deem fitting and proper. * * * Section 9. A member who has been found guilty of charges preferred against him pursuant to this Article shall have the right to appeal to the International Committee on Appeals ... Section 10. Any higher body to which an appeal from the decision of the Local Executive Board is made shall have the authority to affirm or reverse the decision, or to modify the decision, or to order a new trial. Section I I. A member who is under suspension from membership, including a temporary suspension pend- ing hearing or trial, shall be required to pay all dues during the period of suspension. ARTICLE XXIII. Appeals Section 1. The International Executive Council shall appoint a Committee on Appeals to consist of five (5) members of the Council. The Committee on Appeals shall have the power to decide all appeals from Local Unions and their members, except as herein otherwise provided. When the decision of the Committee on Appeals is unanimous, such decision may be appealed only to the next International Convention ... Discussion "[A] fundamental policy of the Act includes unrestricted access to its processes and no private organization should be permitted to prevent or regulate access to the Board." 4 Thus, a labor organization that expels or fines a member for filing an unfair labor practice charge with the Board,5 or even threatens a member with discipline for filing an unfair labor practice charge with the Board, 6 violates Section 8(bX )(XA) of the Act. The question in this case is not whether there would be a violation of the Act if the Union had expelled Simms from membership, or if it had threatened to take such action for filing unfair labor practice charges with the Board, but whether the various parts of an intraunion proceeding can be fragmented from the whole and each separately considered as a possible violation of the Act. In this case the final result was that Simms was not expelled from the Union and there was a clear and unequivocal expression of principle by the Union's international committee on appeals that "A members' right to complain to the National Labor Relations Board is protected by law regardless of the merits of the complaint and this charge by Brother McGarvey is dismissed." The parties have cited no guiding precedent. As there is no evidence that the intraunion proceedings brought against Simms were in any manner irregular or that in any manner he was denied any of his substantive or procedural rights under the constitution of the Transport Workers Union of America, AFL-CIO, and as there has been no showing that prior to the date that the decision of the international committee on appeals was handed down Simms was adversely affected by the charges filed by McGarvey or by the action of the Union purporting to expel him,7 I am of the opinion that there has not been a violation of the Act. CONCLUSION OF LAW Respondent has not engaged in violations of the Act alleged in the complaint. Upon the foregoing findings of fact, conclusion of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Section 5. When any act or decision of a Local Union is reversed or modified on appeal, the Interna- tional Executive Council may in its discretion require I Independent Shoeworkers of Cincinnati, Ohio (The United States Shoe Corporation), 208 NLRB 411, 417 (1974). s International Union of Operating Engineers, Local No. 825, AFL-CIO (Building Contractors Association of New Jersey), 173 NLRB 955 (1968): H. B. Roberts, of Local 925, International Union of Operating Engineers and Local 925, International Union of Operating Engineers v. N.L.R.B., 350 F.2d 427 (C.A.D.C., 1965). a Millwrights & Machinery Erectors, Local Union 1510, affiliated with the United Brotherhood of Carpenters & Joiners of A merica A FL-CIO (Mulberry ORDERs The complaint herein is dismissed in its entirety. Construction & Welding Co.), 152 NLRB 1374, 1377 (1965); see also Independent Shoeworkers of Cincinnati, Ohio, supra. 7 See Bellinger Shipyards, Inc., 227 NLRB 620 (1976). s In the event that 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." 539