International Brotherhood of Teamsters, Local 992 (UPS Ground Freight, Inc.)

TEAMSTERS LOCAL 992 (UPS GROUND FREIGHT, INC.) 543 International Brotherhood of Teamsters, Local 992 (UPS Ground Freight, Inc.) and Ronald Whar- ton. Case 05–CB–132184 April 6, 2015 DECISION AND ORDER BY CHAIRMAN PEARCE AND MEMBERS JOHNSON AND MCFERRAN On December 11, 2014, Administrative Law Judge Ar- thur J. Amchan issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. The National Labor Relations Board has 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 decided to affirm the judge’s rulings, findings, and conclusions1 and to adopt the recommended Order as modified2 and set forth in full below. 1 We affirm the judge’s conclusion that the Respondent violated Sec. 8(b)(1)(A) of the Act when its business agent, Robert Fahnestock, threatened or implied that the Charging Party, Ronald Wharton, could be brought up on internal union charges if he testified on behalf of his Employer, UPS Ground Freight, Inc., in a February 20, 2014 arbitration proceeding. In doing so, we do not rely on the judge’s statements that Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417, 1418–1419 (2001), “has no bearing on the instant matter” because it “stands for the proposition that a union violates Sec[.] 8(b)(1)(A) only when there is a nexus to the employee-employer rela- tionship.” (Emphasis added.) Rather, as the Board made clear in San- dia, “Sec[.] 8(b)(1)(A)’s proper scope, in union discipline cases, is to proscribe union conduct against union members that impacts on the employment relationship, impairs access to the Board’s processes, pertains to unacceptable methods of union coercion, such as physical violence in organizational or strike contexts, or otherwise impairs poli- cies imbedded in the Act.” Here, we find that Fahnestock’s statement to Wharton, as the latter approached the arbitration hearing room, that internal charges might be filed against him if he testified for the em- ployer, or that the Union might file such charges, clearly “impair[ed] policies imbedded in the Act.” See ibid. As noted by the judge, griev- ance and arbitration procedures are a fundamental component of na- tional labor policy. The Board has explained that “[a]rbitration is the keystone to industrial peace in the day-to-day application and interpre- tation of the collective-bargaining agreement, and its integrity without impediment has been sanctioned by the Supreme Court in the Steel- workers trilogy. It is essential to the existence of the arbitration process that witnesses testify before the arbitrator without fear of reprisal from either the employer or the union.” Teamsters Local 788 (San Juan Islands Cannery), 190 NLRB 24, 27 (1971) (footnote omitted); see also Graphic Communications Local 388M (Georgia Pacific Corp.), 300 NLRB 1071, 1072–1073 (1990). 2 We shall modify the judge’s recommended Order to conform to the Board’s standard remedial language, and we shall substitute a new notice to conform to the Order as modified. ORDER The National Labor Relations Board orders that the Respondent, the International Brotherhood of Teamsters, Local 992, its officers, agents, and representatives, shall 1. Cease and desist from (a) Threatening or implying that an employee could be brought up on internal union charges for testifying on behalf of an employer in an arbitration proceeding. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days after service by the Region, post at its business office and other places where notices to its members are customarily posted, including any bulletin board it may be allowed to use at the UPS Ground Freight, Inc. facility in Williamsport, Maryland, copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent’s authorized representative, shall be posted by the Re- spondent and maintained for 60 consecutive days in con- spicuous places, including all places where notices to members are customarily posted. In addition to physical posting of paper notices, notices shall be distributed elec- tronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Re- spondent customarily communicates with its members by such means. Reasonable steps shall be taken by the Re- spondent to ensure that the notices are not altered, de- faced, or covered by any other material. (b) Within 14 days after service by the Region, deliver to the Regional Director for Region 5 signed copies of the notice in sufficient number for posting by the Em- ployer at its Williamsport, Maryland facility, if it wishes, in all places where notices to employees are customarily posted. (c) Within 21 days after service by the Region, file with the Regional Director for Region 5 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 3 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 362 NLRB No. 64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 544 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 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 bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten or imply that you could be brought up on internal union charges for testifying on behalf of an employer in an arbitration proceeding. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights listed above. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, LOCAL 992 The Board’s decision can be found at www.nlrb.gov/case/05–CB–132184 or by using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National Labor Re- lations Board, 1099 14th Street, N.W., Washington, D.C. 20570, or by calling (202) 273-1940. Daniel M. Heltzer, Esq., for the General Counsel. Jonathan G. Axelrod, Esq. (Beins, Axelrod, P.C.), of Washing- ton, D.C., for the Respondent. DECISION STATEMENT OF THE CASE ARTHUR J. AMCHAN, Administrative Law Judge. This case was tried in Hagerstown, Maryland, on October 28, 2014. Ronald Wharton, the Charging Party, filed the charge on July 7, 2014. The General Counsel issued the complaint on July 31, 2014. The General Counsel alleges that Respondent, Teamsters Local 992, by Business Agent Robert Fahnestock violated Sec- tion 8(b)(1)(A) of the Act by threatening the Charging Party, Ronald Wharton, with internal union charges, if he testified on behalf of his employer in an arbitration proceeding. This Feb- ruary 20, 2014 arbitration proceeding involved the discharge of a fellow employee at UPS Ground Freight, Gene Longworth. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel and Respondent, I make the following FINDINGS OF FACT I. JURISDICTION The Employer, UPS Ground Freight, is a corporation, en- gaged in the intrastate and interstate transportation of freight. It maintains a terminal in Williamsport, Maryland, and performs services valued in excess of $50,000 outside of the State of Maryland. UPS Ground Freight is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and the Union, International Brotherhood of Teamsters Local 992, is a labor organization within the meaning of Sec- tion 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES The Charging Party, Ronald Wharton, is a truckdriver for UPS Ground Freight. He generally hauls freight from the UPS terminal in Williamsport, Maryland, to Philadelphia and back. He is a member of the bargaining unit represented by Team- sters Local 992 and at one time was a union steward. Some- time prior to January 2014, Wharton resigned his position as union steward. On January 14, 2014, Wharton allegedly had one or two al- tercations or confrontations with fellow employee and union member Gene Longworth. On or about January 24, 2014, UPS Ground Freight discharged Longworth as a result of these al- leged incidents. The Union filed a grievance over Longworth’s termination. This grievance was docketed to be heard in an employer-union arbitration scheduled for February 20, 2014, at the Omni hotel in Richmond, Virginia. On February 20, UPS terminal manag- er, Benjamin Campbell, called Ronald Wharton and asked him to go to Richmond to testify in the Longworth arbitration. Wharton drove to Richmond and was met by UPS Labor Re- lations Manager Robert Cowie. Cowie and Wharton then pro- ceeded towards the meeting rooms in which the arbitration sessions were being conducted. In the hallway on the way to these rooms, Cowie and Wharton passed a number of union officials, including Business Agent Robert Fahnestock. Fahnestock indicated to Wharton that he wanted to speak to him.1 Cowie went on his way while Fahnestock spoke to Wharton. Fahnestock either told Wharton that internal union 1 There is contradictory testimony as to whether Fahenstock touched Wharton. The parties have stipulated that he did not do so in a violent matter. I find that whether he touched Wharton or not is irrelevant to any issue in this case. TEAMSTERS LOCAL 992 (UPS GROUND FREIGHT, INC.) 545 charges might be filed against him if he testified for the Em- ployer in the Longworth arbitration (passive voice) or that the Union might file such charges (active voice). I conclude it makes no difference, so I will assume that the statement was made in the passive voice. In either case, Fahnestock’s intent was to discourage Wharton from testifying, and/or to indicate that there might be adverse consequences if he did so. The Longworth arbitration was not heard on February 20. It was apparently heard in May 2014. Wharton did not testify on behalf of UPS in May. Longworth has not been reinstated to his employment by UPS Freight. On March 10, 2014, the Union notified Wharton by certified mail that Steward Jeff Atkinson and Gene Longworth had brought internal union charges against him. He was informed that a hearing would be conducted on those charges on April 13. Attached to the certified letter was a letter dated February 10, 2014, signed by Steward Atkinson. The letter accused Wharton of bullying union members and conspiring with man- agement in the termination of Gene Longworth. It did not ref- erence Wharton’s presence at the Omni on February 20 or his intention to testify in the arbitration proceeding.2 It is unclear when the February 10 letter was presented to higher officials in the Union, but this was done prior to Febru- ary 24.3 The Union’s executive board apparently agreed to pursue these charges against Wharton on March 9. The April 13 hearing was postponed and no hearing on the union charges had been conducted as of October 28, 2014. Analysis There is little in the way of disputed relevant evidence in this case. The issue herein is simply whether the Union violated Section 8(b)(1)(A) in attempting to discourage Ronald Wharton from testifying in the Longworth arbitration. At first blush it would appear that the Union clearly violated the Act pursuant to Board precedent. The Board has long held, as a general proposition, that a union violates Section 8(b)(1)(A) in disciplining an employee for testifying adverse to it in an arbitration proceeding, Teamsters Local 557 (Liberty Transfer Co.), 218 NLRB 1117, 1120 (1975). In Graphic Communications Local 388M (Georgia Pacific Corp.), 300 NLRB 1071,1072–1073 (1990), the Board held that a union violates Section 8(b)(1)(A) by disciplining members for appear- ing and testifying in arbitration proceedings in a manner contra- ry to the interests of other employees—unless the Union has objective evidence of perjury. The Board’s decision in Oil Workers Local 7-103 (DAP, Inc.), 269 NLRB 129, 130–131 2 I find the discussion regarding Atkinson’s status in Respondent’s brief to be irrelevant to any issue in this case. The General Counsel has not alleged that the Union by Atkinson committed an unfair labor prac- tice. The General Counsel’s allegations are limited to Fahnestock’s conversation with Wharton on February 20, 2014. I also find the fact that Atkinson filed internal union charges against Wharton to be irrele- vant to this matter. These charges do not reference Wharton’s testimo- ny at an arbitration proceeding. 3 R. Exh. 3, the February 10, 2014 letter states that it was hand de- livered, but does not say when it was hand delivered. Fahnestock testi- fied that the letter was delivered to Thomas Krause, secretary/treasurer of the Union on February 10. However, there isn’t any nonhearsay evidence that this is so. (1984), leads me to the conclusion that any restraint or coercion of members at any stage of the grievance and arbitration pro- cess violates the Act. Fahnestock’s comments to Wharton were clearly intended to discourage and coerce him from testifying in the Longworth arbitration. These decisions are predicated on the doctrine that grievance and arbitration procedures are a fundamental component of national labor policy. When the Board defers to the grievance and arbitration process under the Collyer doctrine (Collyer Insulated Wire, 192 NLRB 837 (1971)), those procedures take the place of the Board’s processes. Thus, one cannot argue with the Board’s statement in Graphic Communications, that “it is essential to the integrity of these processes that witnesses feel free to testify before an arbitrator without fear of reprisal from either the employer or the union.” The cases cited above have not been overruled and would seem to be dispositive of this case were it not for the Board’s subsequent decision in Office Employees Local 251 (Sandia National Laboratories), 331 NLRB 1417 (2001). Stated most broadly, the Office Employees decision stands for the proposition that a union violates Section 8(b)(1)(A) only when there is a nexus to the employee-employer relationship and a violation of the rights and obligations of employees under the Act. However, the Board recognized that the Supreme Court in NLRB v. Shipbuilders, 391 U.S. 418 (1968), ruled that a union could not unduly hamper the ability of its members to bring a matter to the Board for its consideration. The General Counsel has not alleged that Fahnestock’s warning threatened Wharton’s employment status with UPS Freight. Thus, the issue is whether in the absence of such a threat to Wharton’s employment status, the Union, by Fahnestock, violated Section 8(b)(1)(A). Unlike the Office Employees case, this matter does implicate policies specific to the National Labor Relations Act. By im- pairing access to the arbitration process, Respondent compro- mised a procedure which is often a substitute for the Board’s processes. Indeed, the Board specifically said as much in Teamsters Local 788 (San Juan Islands Cannery), 190 NLRB 24, 26–27 (1971). Thus, I conclude that the Office Employees case has no bearing on the instant matter. Fahnestock violated the Act by trying to discourage Wharton from appearing on behalf of the employer in the Longworth arbitration. I reject Respondent’s argument that Fahnestock did not vio- late the Act because he was trying to protect Wharton. Re- spondent in its brief argues that Fahnestock reasonably believed that Atkinson and/or Longworth would file a charge against Wharton if he testified on February 20. There is no basis for this contention. There is no evidence that either Atkinson or Longworth indicated to Fahnestock that they would file an internal union charge or another internal charge against Whar- ton if he testified in the arbitration. Fahnestock did not tell Wharton that Atkinson and Long- worth had already filed a charge against him—assuming that this was the case and that Fahnestock was aware of the letter dated February 10. Indeed, Fahnestock testified that on Febru- ary 20, he “may have been known” that Atkinson and Long- worth had already filed charges; not that he knew that they had done so. Moreover, Fahnestock, as a union agent, is charged DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 546 with the responsibility of knowing that the Union could not lawfully process charges against Wharton for testifying in the Longworth arbitration. CONCLUSION OF LAW Respondent, the International Brotherhood of Teamsters, Local 992, violated Section 8(b)(1)(A) of the Act by threaten- ing or implying that Ronald Wharton could be brought up on internal union charges if he testified for his employer in an arbitration proceeding on February 20, 2014. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. [Recommended Order omitted from publication.]