Liberty Coaches, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1977

230 N.L.R.B. 536 (N.L.R.B. 1977)

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