Local 294, Teamsters

National Labor Relations Board - Board Decisions

Oct 26, 1971

193 N.L.R.B. 920 (N.L.R.B. 1971)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 294 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca (August Bohl Contracting Co., Inc ., and Cooley
Contracting Co., Inc., a Joint Venture) and Elroy
Levernois . Case 3-CB-1487
October 26, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On May 18, 1971, Trial Examiner Lowell Goerlich
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in certain
unfair labor practices and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support of its
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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner, except as modified herein: I
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 Trial Examiner and hereby orders that
Respondent, Local 294 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, its officers, agents, and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order, as modified below:
1. Delete the words "and the Respondent shall
otherwise comply with that part of the Decision
entitled `The Recommended Remedy.' " from the
close of paragraph 2(a).
2. Substitute the attached Appendix for the Trial
Examiner's Appendix.
1 In his Recommended Remedy the Trial Examiner recommended, in
part, that the Board declare null and void such union elections as may have
been run during Levernots' suspension from membership and that the
Board order the Union to rerun such elections We do not adopt this
portion of the Trial Examiner 's Recommended Remedy as this would
entail an action that is within the province of the Secretary of Labor under
the provisions of the Labor-Management Reporting and Disclosure Act of
1959 (29 U S C. Sec. 481, et seq )
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT suspend employees from member-
ship in our organization or fine them because they
have filed unfair labor practice charges with the
National Labor Relations Board against us or our
officials or have given testimony to the National
Labor Relations Board in support of such charges.
WE WILL reinstate Elroy Levernois whom we
suspended and fined to full membership in our
organization without any loss of any status as a
member and rescind his fine in the amount of $750
and WE WILL reimburse him with interest
thereon for any losses or expenses suffered
because of the absence of certain benefits during
the period of his expulsion.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of their
rights guaranteed in Section 7 of the National
Labor Relations Act.
Dated By
LOCAL 294
INTERNATIONAL
BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND
HELPERS OF AMERICA
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, Seventh Floor, Drislane Building, 60 Chapel
Street, Albany, New York 12207, Telephone
518-472-2215.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: On charges filed by
Elroy Levernois on July 22, 1970, against Local 294
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein referred to
193 NLRB No. 138
LOCAL 294, TEAMSTERS
as the Union or the Respondent, a complaint and notice of
hearing was issued on January 20, 1971. The complaint in
substance alleged that the Respondent Union violated
Section 8(b)(I)(A) of the National Labor Relations Act, as
amended, herein referred to as the Act, by imposing a fine
and suspending Levernois from membership in the Union
for 1 year because he filed charges against the Respondent
with the National Labor Relations Board and gave
testimony under the Act in support of a complaint issued
on such charge.
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged. As a defense
the Respondent alleged : "Levernois was disciplined and
fined on charges filed by a member of Respondent for
actions and activity against such member by Levernois,
which actions and activities were violative of the constitu-
tion of Local 294 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America. The
trial and the disposition of the charges against Levernois,
were made and had pursuant to the procedures provided by
said constitution, the said Levernois having been given full
due process under the said constitution, duly found guilty
of such charges and duly fined and disciplined. The fine
and discipline imposed on Levernois was for a wrong and
injury against a brother member, and not for the activities
alleged in the complaint."
The matter came on for hearing in Albany, New York, on
March 2, 3, 16, 17, and 18, 1971. At the hearing the General
Counsel and the Respondent Union were represented by
counsel and the Charging Party, Elroy Levernois, appeared
in propria persona. Each party was afforded a full
opportunity to present evidence relevant to the issues, to
call, examine , and cross-examine witnesses , to present oral
argument , to file proposed findings and conclusions, and to
file briefs . Briefs were submitted by the General Counsel
and the Respondent Union which have been duly
considered by the Trial Examiner.
Upon the record as a whole and from his observation of
the witnesses the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS AND REASONS
THEREFOR
1. THE LABOR ORGANIZATION INVOLVED
The Respondent Union is the collective-bargaining
representative of its members and other persons employed
by numerous employers engaged in the building and
construction industry and other businesses in Albany, New
York , and surrounding areas . The Trial Examiner finds, as
is admitted by the Respondent Union, that the Respondent
Union is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
At all times material herein Levernois was a member of
the Union and the following named persons occupied the
positions set opposite their respective names and have been
and are now agents of the Respondent acting on its behalf
and are agents within the meaning of Section 2 ( 13) of the
Act: Nick Robilotto, president; Howard Bennett, secretary
-treasurer; Howard Campbell, trustee; John Cobb,
trustee ; Charles Bentley , trustee ; and Anthony Carusone,
business representative.
II. THE BUSINESS OF THE EMPLOYING ENTERPRISE
921
August Bohl Contracting Co., Inc., and Cooley Contract-
ing Co., Inc., with whom the Respondent Union enjoyed a
collective-bargaining relationship are and have been at all
times material herein corporations duly organized under
and existing by virtue of the laws of the State of New York
and are engaged in the construction industry as August
Bohl Contracting Co., Inc., and Cooley Contracting Co.,
Inc., a Joint Venture, herein called Bohl Cooley.
At all times material herein Bohl Cooley, which
maintains its office and principal place of business at
Albany, New York, has been engaged in excavation work at
various projects in the Albany, New York, area. During the
past 12 months Bohl Cooley, in the course of its business
operations, received in New York State directly from other
States of the United States goods and materials valued in
excess of $50,000. The Trial Examiner finds that Bohl
Cooley, as is admitted by the Respondent Union, is now
and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
III. THE UNFAIR LABOR PRACTICES
The credible facts germane to this proceeding are as
follows:
In October 1967 Levernois participated in the organiza-
tion of the United Teamsters Association which was limited
to Teamsters Local 293. Levernois was the treasurer of this
organization. In December 1967 the United Teamsters
Association put up a slate of candidates for union office in
opposition to union incumbents as well as others who were
running for union office.
Among the incumbents were President Robilotto and
Secretary-Treasurer Bennett. Anthony J. Carusone was a
candidate for business representative. Levernois became
very active on behalf of the Association's slate of
candidates putting up campaign posters, making telephone
calls, and talking to Local 294 members wherever they
could be found. The United Teamsters Association was not
successful in the election. Levernois continued his office as
treasurer.
On May 4, 1969, Levernois appeared at a union meeting
held in the Albany Labor Temple in Albany, New York. At
the meeting Levernois attempted to obtain a response from
Carusone by addressing the president of the Union.
President Robilotto ruled against such procedure on the
floor but directed Levernois and Carusone to get together
in Carusone's office. Levernois responded that it was not
his choosing to go into the office because he would get the
same procedure there as was given to him at any other time;
however, he did leave the meeting for that purpose.
Carusone also left the meeting and on his way out was
heard to comment to Steward Louie Messimo, ". . . get
some help . . . he was going to need it." Approximately 500
persons were attending the union meeting.
When Levernois arrived at Carusone's office Carusone
said: "What's your bitch now?" Levernois responded: "It's
the same bitch as before. Why can't we get back to work?
Everybody else was called back, men hired after us. Why
can't we go back?" After further discussion the conversa-
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion concluded with Carusone's remarks: "That's all there
is to it. You are through. You ain't going to go to work." At
which point he opened the door and said: "Get out. You're
done. And you're dead. Get out."
Levernois left the office and proceeded toward the foyer
of the Temple. About 8 to 10 persons followed him, pushing
him around in the hallway and impeding his progress.
When he arrived in the lobby seven or eight persons
continued to push him around and call him such names as
"God damn drunken bum, no good trouble maker." These
employees were cautioned by the master-at-arms. The
employees discontinued the tactic. Levernois then proceed-
ed outside in front of the Temple where he stood talking to
several persons. Three or four of the men who had been
harassing him again approached him and resumed the
contumelious name calling. One knocked a cup of coffee
out of his hands. Among these individuals were Robert
Tessitore, Anthony Civitello, and Anthony Del Gallo,
stewards under Carusone who prior to that date were seen
on many occasions with him. While these persons were
engaged in harassing Levernois by calling him a "trouble
maker" and "a drunken bum," Carusone walked out of the
Labor Temple and entered his parked car. These individu-
als followed Carusone to his car and "stuck their heads in
the window and started talking" to him. Levernois then
returned to the lobby of the Temple, now empty, for a drink
of water. While he was at the water fountain an individual
bumped him. Levernois responded, "What are you pushing
me for?" Whereupon the individual "hauled off and
slugged" him on the side of the face and knocked him up
against the wall. Levernois later learned that this person
was Steward Civitello. While Levernois was up against the
wall "some guys grabbed" him from behind and Civitello
commenced punching Levernois in the ribs and jaw and
"everywhere else" while he was being held. Finally
Levernois extracted his right arm and hit Civitello. They all
fell to the floor. When Levernois looked up from the floor
the first face which he saw was that of Robert Tessitore. At
this point other persons appeared. Later Levernois learned
the identity of Tessitore and that Steward Del Gallo was the
other employee who had held him. After the altercation was
stopped Levernois was advised to leave the Temple which
he did. He entered his pickup truck and proceeded to drive
toward his home. As he was driving he noticed that a car
was following him. As he continued he passed the car of
Carusone parked in a tire company driveway. As he drove
past Carusone commenced to follow him down the road.
About 2 miles from Levernois' home Carusone turned from
the highway After Levernois arrived at his home his
"stomach bothered" him and he could not get his breath.
He was taken to the Memorial Hospital where he stayed
from 2.30 in the afternoon until 7.30 that night. Injuries
resulting from the affray were contusions and abrasions to
the face and fractured ribs. Levernois was taped from the
belt to the chest with stretch tape.
At the time of the affray Levernois did not know the
names of his attackers . He learned where two of them were
working and located them there. He ascertained that they
were Civitello and Tessitore.
The following day Secretary-Treasurer Bennett discussed
the fracas in the office. ". . . it could have been Mr.
Carusone who touched on it." "The allegation was that
Tessitore was involved in that . . . the names had been
mentioned; Mr. Del Gallo and Mr. Civitello . . . there was
another name mentioned, a driver from Red Start." Later
in the week Bennett discussed the matter with President
Robilotto. The Union conducted no official investigation.
On May 6, 1969, Levernois filed unfair labor practice
charges against the Respondent in Case 3-CB-1268-2
alleging that the Respondent, pursuant to an exclusivejob
referral practice and arrangement with Bohl Cooley, caused
Bohl Cooley to refuse employment to Levernois because of
his activities in supporting candidates for election as
officers of Respondent in opposition to a slate of
candidates nominated by Respondent thereby violating
Section 8(b)(1)(A) and (2) of the Act.
On May 7, 1969, Levernois appeared at the police court
for the city and county of Albany and filed an affidavit
against Robert Tessitore and Anthony Civitello in which it
was alleged that they did "recklessly cause physical injury
to another person, to wit: that on the above date at
approximately 12:00 P.M. at the Labor Temple, 890 Third
Street in said City of Albany the defendants did hit, punch
and strike deponent about his head, face and body, thereby
inflicting bodily injuries to deponent requiring deponent to
receive medical attention at the Memorial Hospital."
Tessitore and Civitello appeared in police court on the
charges on July 3, 1969, at which time they were
represented by Attorney Garry. Garry escorted Levernois
into Judge Teppedino's chambers where the judge advised
Levernois that it would be better if the case were settled out
of court, commenting that they "didn't like to have any
union trouble in court."
Among other things Garry told Levernois that he could
be "sued for the rest of [his] life" if he were to lose. Garry
suggested that Levernois sign a release; Levernois respond-
ed that he "wouldn't be willing to sign a release because [he
was ] the only one that got hurt on it." Levernois explained,
"he told me that what they could do to me and if we would
sign the release , we would all sign a release back and forth
for each other, that it would be dropped; it would be done
and nothing ever brought up on it again and that was the
basis that I signed the release." Garry further said that they
had witnesses present who would testify that Tessitore was
not at the scene. Under the guidance of Attorney Garry a
release was signed by all the parties including Levernois.
The release given by Tessitore and Civitello to Levernois
LOCAL 294, TEAMSTERS 923
released and forever discharged Levernois "from all in all
manner of action and actions, cause and causes of action,
suits, debts, dues, sums of money, accounts, reckoning,
bonds, bills, specialities, covenants, contracts, controver-
sies, agreements, promises, variances, trespasses, damages,
judgments, extents, executions, claims and demands
whatsoever, in law or in equity."
On September 30, 1969, the Regional Director of Region
3 of the National Labor Relations Board, Buffalo, New
York, issued a complaint against Respondent alleging the
Respondent's violation of Section 8(b)(1)(A) and (2) of the
Act in Case 3-CB-l268-2.
On November 3, 1969, Levernois gave testimony at a
hearing before Trial Examiner Eugene Dixon in support of
the Regional Director's complaint and the aforesaid
charges.' Carusone was shown by the testimony to have
been a principal in Respondent's unfair labor practices.
After the Board hearing, about the first week in
December 1969, Levernois encountered Carusone at the
South Mall construction project. Levernois asked Carusone
"if there was any chance of getting any job or getting back
on the Mall again." Carusone replied, "no, you are not
going back to work."
Shortly before February 6, 1970, Tessitore conferred with
Secretary-Treasurer Bennett in respect to filing a union
charge against Levernois. On February 6 the charge was
filed, the gist of which was that Levernois caused
Tessitore's arrest on May 3, 1969. In the charge it was
further alleged: "This arrest was for assault and was made
maliciously and without cause. Mr. Levernois had me
arrested to injure me as an individual and as a Union
Member, thereby violating the Union Constitution, and it
also caused embarassment to me and my family."
On February 23, 1970, Levernois filed a union charge
against Tessitore on the ground that he had preferred union
charges against him with malice and bad faith pointing out
that he had released him from any and all claims arising
from the arrest and that he was maliciously breaking the
terms of the release by filing the charges.
Pursuant to the provisions of the constitution of the
International Brotherhood of Teamsters, Chauffeurs and
i Based upon the testimony of Levernois and the record as a whole,
Trial Examiner Dixon found by a preponderance of the evidence that
"Levernois was refused employment at the Walsh job after the Albany
High School job ended essentially because of [his] support of the United
Teamsters Association and the activities [he ] was engaged in and that this
refusal was the result of [the] action taken by the Union " Trial Examiner
Dixon further found "Considering the part played by Levernois in the
organization and administration of the United Teamsters Association and
its political activities , it requires no effort to draw the inference (which I
do) that the Union's failure to recall these two men was because of such
activity on their part " The Trial Examiner continued, "There is no doubt
that the existence and activities of the United Teamsters Association and
those responsible for its organization and direction particularly as pertains
to the union election of December 1967 were well noted by the encumbent
union officials as well as by Carusone
2 Trial Examiner Dixon's Decision was affirmed by the Board at l83
NLRB No 104
3 When Frank Severino testified about Carusone's comments to
Messimo as he left the May 4, 1969, membership meeting , Carusone
shouted, " . put his name down in the book, he's next " Carusone is the
business agent in charge of the construction division of the Union and
often attended Executive Board meetings Tessitore as shop steward on
construction jobs reported to Carusone to whom he owed his appointment
Tessitore is a social friend of Carusone and they visit each other's homes
Warehousemen and Helpers of Amenca, the charges filed
by Tessitore were set for hearing before the Local Umon's
Executive Board as the Trial Body. The constitution
provides that charges against a member of the Union shall
be tried by the Local Union's Executive Board. At the time
of the hearing Secretary-Treasurer Bennett and President
Robilotto were members of the Executive Board.
On February 27 Trial Examiner Dixon issued his
Decision in Cases 3-CB-1268-1 and 3-CB-1268-2.2
Among other things Trial Examiner Dixon recommended
that the Respondent Union cease and desist from causing
or attempting to cause the August Bohl Contracting Co.,
Inc., and Cooley Contracting Co., Inc., a Joint Venture, to
discriminate against Levernots contrary to the requirements
of Section 8(a)(3) of the Act and to make him whole for any
loss of earnings that he might have suffered because of the
discrimination against him. A notice was also required to be
posted in which among other things the Union acknowl-
edged its duty to make Levernois whole for loss of earnings
by reason of the discrimination against him.
On February 29, 1970, prior to the receipt of Trial
Examiner Dixon's Decision in Case 3-CB-1268-2, the
hearing was commenced and concluded on Tessitore's
charges against Levernois. Levernois appeared and was
represented by another member, John Cannon. Carusone
attended and sat in the vicinity of the Executive Board.3 At
the hearing Levernois brought out, among other things, that
when Carusone left the May 4, 1969, meeting to confer with
Levernois on the day of the fracas, Carusone said to
someone "get some of the boys," that as Levernois left
Carusone's office Del Gallo, Civitello, and Tessitore
harassed and pushed him and swore at him in the lobby and
that when Levernois first looked up from the floor he saw
Tessitore's face. Testimony adduced for Tessitore pointed
to the conclusion that Tessitore was present at the affray on
May 4 but participated in it only to the extent of assisting in
breaking up the fracas.4 Upon inquiry Tessitore testified
before the Executive Board that the reason for his belated
filing of the charges against Levernots was that the "longer
it went, the more it bothered" him.5 Levernois offered the
signed release to the Board which was examined with the
4 The Trial Examiner deems it unnecessary to detail in full all the
evidence which was submitted to the Executive Board since it is his opinion
that the verdict was supported by some evidence and, although his decision
would have differed from that of the Union Executive Board, nevertheless,
in that the verdict was supported by some evidence, such verdict is not
reviewable under the teachings of the United States Supreme Court in
International Brotherhood of Boilermakers v Hardeman, 76 LRRM 2542
5 Levernois told the Executive Board, "I said, `why do you bnng it up 9
months later . Why don't you do it a couple of weeks after9' He said, 'well,
the longer I thought about it, the more it bothered me' So Cobb [a
member of the Executive Board ] asked me what it cost me . I said, 'I don't
know right at the time I don't know what it is going to cost me, didn't
have it figured up' Mr Bentley [a member of the Executive Board] asked
me if I could have been mistaken of who was there when the incident
happened I said, 'as far as Mr Tessitore , I couldn't be because he was the
first one I seen when I come up off of the floor' Mr Bentley asked me the
same thing I gave him the same answer, and I still contended to the Board
that I was being brought up on charges where I did no harm to the Union
of any kind. I asked them right out , I said, 'in other words , a brother
member can meet you out on the road some place. run over you and break
your legs, do what you want and because he is a brother member you can't
do nothing about it.' I said, 'we signed this release in good faith with his
lawyer down there that this was supposed to have been done with and
never ever brought up again . The judge specified that to me Garry
(Continued)
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
comment by the president that "the release didn't mean
nothing as far as the Union, the Union affair, at the Board.
That that release didn't mean anything."
About the second week of March 1970, Levernois called
Carusone and mentioned that T & L Construction, on the
Almart Shopping Center job, wanted a Teamster for the
next morning , and that he had a paid-up book and hadn't
had a job for a long time . Carusone replied that Levernois
couldn't go on the job, that he had a man on the job.
Levernois asked who and Carusone said, "It is none of your
business; I put who I want on the job. I do that." Levernois
inquired how he had a man so fast as the job just opened
about an hour before. Carusone said, "I got a man for the
job and it is none of your business and you don't have to
worry about working, anyhow. You are not going to work."
On April 4, 1970, a hearing was conducted on Levernois'
charge against Tessitore. At this hearing Levernois told the
Board that Tessitore was hurting his name in the Union,
that he had made up a charge against him which had
nothing to do with the Union, and that he had signed a
release and broken his agreement when he filed charges
against him . He indicated to the Board that he filed charges
against Tessitore to protect himself from getting charged
for something he wasn't involved in with the Union. He
also told the Board that he had never heard of a charge of
this character being brought up before the Executive Board.
Tessitore again said that he failed to file a charge sooner
because the longer he thought about it the more it bothered
him. A decision has not yet been announced.
On April 10 a written decision was submitted to
Levernois on Tessitore's charges. Inter alia, the decision
read:
The charge brought by Robert C. Tessitore against you
has been found to be fully supported by the evidence in
that you did cause the arrest of Robert C. Tessitore on
the 3rd day of May, 1969 for an assault claiming that
the said Robert C. Tessitore did assault you; and it is
found that the said charge was made with malice and
without cause. The evidence clearly established that
Tessitore did in fact not assault or strike you and that
you, yourself were unable to identify Tessitore as the
person you claimed struck you.
concerned with a willful and malicious charge against a
Brother member unsupported by evidence, including your
own, that the charged Brother was in fact guilty of the
claimed assault. The statement and the evidence which
you presented did not constitute a defense to the serious
charge nor in fact was the charge in any way disproved.
You are therefore advised that you are guilty of the
charge filed against you in harming a Brother member
by causing his arrest for an assault and causing him
embarassment , both personal and financial, and
exposing him to the necessity of defending an
unfounded charge, all with injury of Brother member.
You are therefore fined the sum of Seven Hundred Fifty
Dollars ($750.00) and you are suspended from member-
ship in the Local Union for a period of one (1) year.
You may be reinstated to full benefits of Union
membership upon the payment of the fine and the
elapsement of one year (1) year. [Emphasis supplied.]
The verdict was signed by Howard Bennett , secretary-
treasurer, Nicholas M. Robilotto, president, Stanley
Nooney, vice president, Charles Bentley, Howard Camp-
bell, John Cobb, and Joseph Wempley.6
Thereafter Levernois filed an appeal which, in conformi-
ty with the union constitution, was lodged with the New
York State Teamsters Joint Council No. 18. The appeal has
lain dormant in view of the fact that the Respondent has
not presented the data to the Joint Council which is
necessary in order for it to act upon Levernois' appeal.
Levernois also appealed to the International president
under the constitution to suspend the fine during the
appeal; such request was denied.
George Gibbs, a witness who appeared on behalf of
Tessitore, had been a union steward for 35 years and
President Robilotto's friend of 40 years' standing. Prior to
the hearing he had reported to Robilotto that he had been
conversing with Tessitore in front of the Temple on the day
of the fracas when somebody came out of the Temple and
said that there was a fight occurring in the lobby. As stated
by Gibbs , "I told him [Robilotto] that guys were going past
.... [T]here was traffic there, and it was a number of
seconds before Mr. Tessitore could have gotten in the
lobby. By the time I got in there . . . I am not as young as
he is, the fight was over . . . if there was a fight."
The evidence further clearly established through your
own testimony that you had not expected that the
information and arrest would have gone to the extent
that it did, and that you would not have pressed the
charges if you had realized the seventy of it. The
testimony clearly showed that as a result of your action
against Robert C. Tessitore, that he was exposed to
unfavorable publicity announcing his arrest and that he
was caused to expend a large sum of money in support
of his legal defense due to your act in causing his arrest.
This Board is not concerned with legal damages to
Robert C. Tessitore or with general Releases exchanged
between the parties concerning damages. The Board is
specified that to me That was definitely the end of it, never hear it
again ' " The Trial Examiner considers Levernois to have been a credible
witness The Trial Examiner is convinced that Tessitore was not telling the
truth when he related why he delayed in filing his charge against Levernois
CONCLUSIONS AND REASONS THEREFOR
A union violates Section 8(b)(1)(A) when it restrains or
coerces employees in the exercise of rights guaranteed by
Section 7 of the Act by expelling from membership or
otherwise disciplining an employee member for filing unfair
practice charges against the union with the Board . N.L.R.B.
v. Industrial Union of Marine & Shipbuilding Workers of
America, AFL-CIO, 391 U.S. 418; International Union of
Operating Engineers, Local No. 825, AFL-CIO (Domestic
Terantino), 173 NLRB No. 145, affd. 420 F.2d 961 (C.A. 3).
The General Counsel claims that this rule of law was
violated when the Respondent Union suspended and fined
Levernois. However, the application of the rule to the
6 This name may be an error since the handwriting appearing on the
verdict is difficult to decipher. Tessitore included among his friends
Bennett , Robilotto , and some of the trustees.
LOCAL 294, TEAMSTERS 925
instant case is not such an easy one because the suspension
and fine imposed upon Levernois were ostensibly for
causing the arrest of a brother union member and not for
filing an unfair labor practice charge with the Board.
Moreover, the Supreme Court teaches that the scope or
nature of the offenses for which a union may discipline its
members,7 or a verdict supported by "some evidence" is not
reviewable. Boilermakers v. Hardeman, 76 LRRM 2542. In
view of these teachings the Trial Examiner cannot find that
the offense was not cognizable or that the verdict of the
Executive Board was invalid since it was clearly supported
by some evidence.8 Moreover the union trial satisfied at
least the first two requirements of 29 U.S.C. § 411(a)(5), i.e.,
Levernois was served with written specific charges and was
given a reasonable time to prepare his defense. There is,
however, a question about the third requirement, viz,
whether Levernois was "afforded a full and fair hearing." It
was said in Carroll v. Associated Musicians of Greater New
York, Local 802, 235 F.Supp. 161, 171 (D.C.N.Y.),
"Undoubtedly the term `full and fair hearing' requires at its
minimum an unbiased and disinterested tribunal." See also
John E. Parks v. International Brotherhood of Electrical
Workers, 203 F.Supp. 288, 307 (D.C.Md.). In this respect
the duty of disqualification, at least in part, lay with the
members of the trial body, here the Executive Board.
"[S]ince an element of a full and fair hearing is that the
Trial Body be impartial, the duty of disqualification
because of prejudgment or bias would seem to rest, at least
in part, with the members of the Trial Body." James S.
Falcone v. Russell Dantinne, 420 F.2d 1 157, 1162 (C.A. 3).
Had Bennett, who discussed the charges with Tessitore
and Robilotto, who had been briefed by Gibbs, a friend of
40 years' standing, assumed such duty each would have
disclosed what he knew about the case or would have
disqualified himself. Such a lapse under the circumstances
carried a more prejudicial impact in that what Bennett and
Robilotto knew about the case in the usual course of events
would not have come to Levernois' attention. Moreover,
because of Levernois' political opposition to the adminis-
tration of the Union, Bennett and Robilotto stood to gain
by his suspension from membership in the Union.
But assuming , arguendo, that the trial and verdict of the
Executive Board were according to law, the General
Counsel, nevertheless, insists that the Union's action
through its Executive Board violated Section 8(b)(1)(A) of
the Act. Such insistence is drawn from a persuasion that the
trial and conviction of Levernois were seized upon as a
pretext to punish him for filing charges against the Union
with the Board. In other words, the union disciplinary
procedures were used surreptitiously as a means of
"clobbering" a member for exercising his lawful right to go
to the Board.
In the case of Operative Plasterers' and Cement Masons'
International Association of the United States and Canada,
etc., 189 NLRB No. 68, Trial Examiner John M. Dyer, with
Board approval , said that even though a union constitution-
al provision was "right and proper but if the provision is
used to coerce a member or obstruct his path to the Board
or to tell other members that their access to the Board can
be so hindered , then such use is wrongful and constitutes a
coercive threat to whom it is applied and to those who hear
it." The situation is the same where a union 's constitution
and trial procedures are used , although seemingly lawful,
for the purpose of frustrating a member 's right to seek in
good faith the Board 's aid against a union 's alleged unfair
labor practices . To allow a union to use such subterfuge
would run counter to the law 's recognition that in the
administration of the Act the protection of employee rights
therein contemplated may be equally frustrated and the
evils thereof left unremedied if an ostensibly lawful act
pursuant to an ostensibly lawful motive is employed to
shroud an unlawful act and a real motive of unlawfulness.
Thus the Supreme Court looks to the "real motive" of the
alleged offender in assessing whether the Act has been
violated . Cf. N.L. R.B. v. Brown Food Store, 380 U .S. 278,
287; Local 357, International Brotherhood of Teamsters [Los
Angeles-Seattle Motor Express] v. N.L.R. B., 365 U .S. 667,
675. Moreover , in finding a violation of the Act , it matters
not that the grounds for the action taken are lawful in part
if the offender is unlawfully motivated . Automotive
Salesmen 's Association, 184 NLRB No. 64 . Cf. N.L. R.B. v.
Princeton Inn Co., 73 LRRM 3002 (C.A. 3); N. L.R.B. v.
Pembeck Oil Corp., 404 F .2d 105 , 110 (C.A. 2). Hence
pretextuous conduct unlawfully motivated which causes an
effect which the Act proscribes is a violation of the Act.
What was perpetrated against Levernois must also be
viewed in the light of the stated policy of Congress. At 29
U.S.C. § 401 it is stated (a part of which is a reiteration of
the policies of the Act):
(a) The Congress finds that , in the public interest, it
continues to be the responsibility of the Federal
Government to protect employees ' rights to organize,
choose their own representatives, bargain collectively,
and otherwise engage in concerted activities for their
mutual aid or protection ; that the relations between
employers and labor organizations and the millions of
workers they represent have a substantial impact on the
commerce of the Nation ; and that in order to
accomplish the objective of a free flow of commerce it is
essential that labor organizations, employers, and their
officials adhere to the highest standards of responsibility
and ethical conduct in administering the affairs of their
organizations, particularly as they affect labor-manage-
ment relations. [Emphasis supplied.]
And at 29 U.S.C. § 501 it is stated:
The officers , agents, shop stewards , and other represent-
atives of a labor organization occupy positions of trust
in relation to such organization and its members as a
group.
On the basis of the record as a whole , like Trial Examiner
+ Of course , "if the [Union ] rule invades or frustrates an overriding
policy of the labor laws the rule may not be enforced , even by fine or
expulsion , without violating § 8(b)(I)." Scofield v. N L R B, 394 U.S.
423,429
8 While the Trial Examiner finds that "some evidence" adduced before
the Executive Board supports the verdict , i.e, testimony that Tessitore was
involved in the fracas only to the extent that he was attempting to "break it
up," the Trial Examiner finds no evidence adduced before the Executive
Board which supports the Board's finding that "the said charges were made
with malice and without cause ." Based upon the evidence that was
adduced before the Executive Board, as it appears in the record, Levernois
acted with reasonable and probable cause and caused Tessitore's arrest in
the good-faith belief that Tessitore , whose face was the first he saw when
he looked up from the floor , participated in the assault.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixon (see 183 NLRB No. 104), the Trial Examiner has no
difficulty in finding that the officials responsible for
Levernois' trial and conviction were Levernois' antagonists
because of his political9 opposition. Trial Examiner Dixon
found this antagonism to have manifested itself in a failure
of the Union "to recall or rehire Levernois ... on the
Walsh job in the exercise of its exclusive hiring arrangement
with Bohl Cooley" which resulted in a violation of Section
8(b)(1)(A) and (2) of the Act. The Trial Examiner is
convinced that this antagonism was fed by Levernois'
charge filed with the Board and when the complaint issued
and the testimony of Levernois was taken, officials of the
Union sought a means to chastise Levernois for his action.
To this end the stale alleged charge of Steward Tessitore
was resurrected. The Union trial which followed was used
as a pretext to penalize Levernois because he had filed
unfair labor practice charges against the Union and gave
testimony to the Board.
Factors, among others, upon which the Trial Examiner
relies for this conclusion are: (1) Union agents, including
Steward Tessitore, harassed and incited physical attacks
against Levernois on May 4, 1969, facts which, although
obvious, were wholly ignored by the Executive Board in
drawing its verdict; (2) Union agents, who ostensibly
viewed Tessitore's charge against Levernois with great
seriousness, showed no interest in verifying or punishing
those members who violated the sanctity of the Labor
Temple by harassing and beating Levernois; (3) While the
testimony of Steward Del Gallo and Steward Civitello,
participants in the fracas, could have shed light upon
Tessitore's part, if any, the Executive Board, unexplainably,
neither attempted to summons them nor elicit their
testimony on the subject of Tessitore's participation, all of
which would indicate that the Executive Board was not
really interested in the truth; (4) The president and
secretary-treasurer, influential members of the Executive
Board, although conversant with the facts of the case,
manifested a want of fair play and an intent to conceal a
possible-bias when neither of them disclosed his knowledge
of the case to Levernois nor disqualified themselves; (5)
The predisposition of the Executive Board to convict was
registered by the out-of-hand rejection for consideration of
the releases signed by the parties which were intended to
resolve all controversies between them; (6) The Executive
Board arbitrarily and without supporting evidence found
Levernois acted "with malice and without cause," although
uncontradicted evidence established Levernois' good-faith
belief that Tessitore participated in the assault which was
rationally drawn from uncontradicted testimony that
Tessitore harassed Levernois as he emerged from Caru-
sone's office, conferred with Carusone immediately subse-
quent to the harassment and showed the first face
Levernois observed when he looked up from the floor; and
(7) Steward Tessitore presented no credible explanation as
to why, after having given Levernois a full release, he
waited more than 9 months to press charges against
Levernois at a time when his friend and political ally,
9 Trial Examiner Dixon wrote "Considering the part played by Sharac
and Levernois in the organization and administration of the United
Teamsters Association and its political activities, it requires no effort to
Carusone, had shortly before been tabbed by Levernois as
discriminatorily denying him a job referral.
The Trial Examiner is convinced that agents of the Union
with the condonation of the Executive Board worked hand
in hand to ultimately punish Levernois. The Trial Examiner
finds that such punishment meted out to Levernots was the
Executive Board's means for penalizing Levernois because
he filed unfair labor charges against the Respondent and
gave testimony under the Act in support of the complaint
based upon such charges. The Trial Examiner further finds
that thereby the Respondent did engage in unfair labor
practices affecting commerce within the meaning of
Sections 8(b)(1)(A) and 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Bohl Cooley is now and has been at all times material
herein an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act; it will effectuate
the purposes of the Act for jurisdiction to be exercised
herein.
2. Respondent Union is and has been at all times
material herein a labor organization within the meaning of
Section 2(5) of the Act.
3. By suspending Elroy Levernois from membership in
its organization for the period of 1 year and fining him $750
because he had filed unfair labor practice charges with the
Board and testified in support of such charges, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED REMEDY
It having been found that the Respondent Union has
engaged in unfair labor practices violative of Section
8(b)(1)(A) of the Act, it is recommended that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Since it
appears that substantially less than the total membership of
the Union attend union meetings, it is further recommend-
ed that copies of the notice marked "Appendix" be mailed
by the Respondent to each of its members. International
Union of Operating Engineers, Local No. 825, AFL-CIO
(Domestic Tarantino), 173 NLRB No. 145.
Levernois "has been deprived of his right to vote in union
elections and for contract ratifications, to attend union
meeting, and otherwise to participate in the affairs of his
Union. These rights cannot be replaced. ..." Cannery
Workers Union of the Pacific (Van Camp Sea Food Co.), 159
NLRB 843. The union incumbents, among whom were the
Executive Board who tried Levernois, were the beneficiar-
ies of Levernois' political neutralization and Levernois and
other members of the Union were the losers. Levernois lost
his forum, the union meeting, his right to run for union
office and his right to oppose the union incumbents for
draw the inference (which I do) that the Union 's failure to recall these two
men was because of such activity on their part."
LOCAL 294, TEAMSTERS
political office as a member in good standing; the
membership lost the value of Levernois' efforts. Had
Levernois stood for office and/or the membership had been
informed of Levernois' point of view election results during
the period of Levernois' suspension might have been
different. Moreover, the trial and punishment of Levernois
had a tendency to deter members, fearing like treatment,
from espousing views contrary to those of the union
incumbents. Labor organization officials must "adhere to
the highest standards of responsibility and ethical conduct
in administering the affairs of their organization." Not
unmindful of this salutary policy and acknowledging that a
remedy intended to effectuate the purposes of the Act
ought to be meaningful and that promoting the status quo
ante is a remedy's prime objective, the Trial Examiner
further recommends that the Board declare null and void
those elections, if any, conducted during Levernois'
suspension from membership and that the Board order the
Union to rerun such elections. Thus the effect of Levernois'
suspension from membership will be in part dissipated and
he will be free to exercise his prerogatives as a member in
good standing in respect to those elections, if any, which
through the unfair labor practices of the Respondent he
was deprived. Such remedy is in line with the General
Counsel's request for "such other relief as the Trial
Examiner deemsjust and proper" and will act as a deterrent
against a repetition of the same misconduct whereas the
other remedies recommended amount to little more than a
slap on the wrist. Such recommended remedy will supply
appropriate sanction to the Supreme Court's ukase that
"there should be as great a freedom to ask the Board for
relief as there is to petition any other department of
government for a redress of grievances." "Any coercion
used to discourage, retard or defeat that access is beyond
the legitimate interests of a labor organization." N.L.R.B. v.
Industrial Union of Marine and Shipbuilding Workers of
America, AFL-CIO, supra, 424.
If an eligible voter is eliminated by an employer's unfair
labor practice discharge the Board normally will vacate a
representation election on behest of the union representa-
tive. Thus it seems consistent and logical that the union
representative who eliminates a voter in a union election by
an unfair labor practice, as here, should be held to the same
rule and the union election should be vacated. In each case
the election is infused with the deleterious effects of unfair
labor practices.
Upon the foregoing findings of fact and conclusions of
law and the entire record and pursuant to Section 10(c) of
the Act, the Trial Examiner hereby issues the following
recommended: io
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and order, and all objections thereto shall
be deemed waived for all purposes
ii See International Union of Operating Engineers, Local 825, 173 NLRB
No. 145
IY In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
ORDER
927
Respondent Local 294 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Suspending employees from membership in its
organization or fining them because they have filed unfair
labor practice charges with the Board or have given
testimony in support of such unfair labor practices.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Reinstate Elroy Levernois to full membership in its
organization and rescind the fine of $750 imposed against
him without requiring the payment of back dues to the
Respondent for the period of his suspension, except for that
portion of his dues which is shown at the compliance stage
to be regularly allocable to the cost of insurance premiums,
pension contributions, and other welfare benefits accruing
to Respondent's members, to the extent that they can be
reinstated retroactively to the date of Levernois' suspen-
sion; to the extent that benefits such as life insurance,
health and medical insurance benefits, and the like cannot
be made effective retroactively for Levernois, Respondent
shall be required to reimburse Levernois with interest
thereon at 6 percent per annum for any expenses or losses
suffered because of the absence of such benefits, less the
proportion of Levernois' dues which would have been
allocable to the payment of premiums for or other purchase
of such benefits; and the Respondent shall otherwise
comply with that part of the Decision entitled "The
Recommended Remedy." ii
(b) Post at its business office and all other places where
notices to members are customarily posted in conspicuous
places copies of the attached notice marked "Appendix" 12
and a copy of said notice shall be immediately mailed to
each member in good standing of the Respondent Union.
Copies of said notice on forms provided by the Regional
Director for Region 3, after being duly signed by an official
representative of Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter. Reasonable steps shall be taken by Respondent
to ensure that said notice is not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 3, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith.13
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN
ORDER OF THE NATIONAL LABOR RELATIONS BOARD "
13 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read-
"Notify the Regional Director for Region 3, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith "