Teamsters Local 515

National Labor Relations Board - Board Decisions

Mar 3, 1980

248 N.L.R.B. 83 (N.L.R.B. 1980)

TEAMSTERS LOCAL 515 83
Teamsters Local 515 (Roadway Express, Inc.) and
Charles E. Helton. Case 10-CB-3027 10-CB-
3027
March 3, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On August 16, 1979, Administrative Law Judge
Robert C. Batson issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only
to the extent consistent herewith.
The facts, as set forth in the attached Decision,
are undisputed. Helton, the Charging Party, is a
member of the Respondent, Teamsters Local 515,
as well as the Professional Drivers Council
(PROD), a dissident group of Teamsters. Helton is
employed by Roadway Express, Inc., at its Chatta-
nooga, Tennessee, facility. On December 14, 1978,
Helton posted on the Union's bulletin board in the
employees' breakroom a PROD newsletter criticiz-
ing the Teamsters and its leaders. The union bulle-
tin board, according to the collective-bargaining
agreement, was to be used solely for "official union
business." In fact, for at least 10 years, the Union
had permitted employees to post all types of no-
tices on its bulletin board, e.g., items for sale,
church revivals, and nonunion political campaign
material. There were two other bulletin boards in
the breakroom; one used by the Employer and an-
other "all-purpose board" for use by anyone.
Shortly after Helton posted the PROD newsletter
on the union bulletin board, it was removed by Job
Steward Hannah who acted on instructions from
Business Agent Perkins. When questioned by
Helton, Perkins stated "that being a union official
he had the legal right to add to and delete from
that board, whenever he saw fit." A similar inci-
dent occurred shortly thereafter.
The Administrative Law Judge found that Hel-
ton's conduct was protected by Section 7 of the
Act and that the Union's actions were analogous to
an employer's application of a presumptively valid
no-solicitation rule to restrict only union solicita-
tion. He reasoned similarly that, although the Re-
spondent could lawfully have restricted the use of
248 NLRB No. 20
its bulletin board to official union business, having
permitted employees to post all types of notices it
could not prohibit the posting of material critical of
the Respondent which is protected by Section 7.
The Respondent argues, inter alia, that it has
never allowed its bulletin board to be used for an-
tiunion messages; that it would be patently unfair
to require it to allow dissident factions to post criti-
cal notices about the Union and its leaders on the
official union bulletin board; that PROD material
was freely distributed about the breakroom; and
that absolutely no disciplinary action was taken or
threatened by the Respondent against Helton that
could be the basis for finding a violation of Section
8(b)(1)(A). We find merit in the Respondent's case.
The cases relied on by the Administrative Law
Judge,' although similar, differ critically in the ma-
terial fact that they involved employer action and
an employer respondent and thus a different sec-
tion of the Act.2 Section 8(a)(1) makes it an unfair
labor practice for an employer "to interfere with,
restrain, or coerce employees in the exercise of the
rights guaranteed in section 7." Section 8(b)(1)(A),
however, makes it an unfair labor practice for a
labor organization or its agents to restrain or
coerce employees in the exercise of Section 7
rights. We do not agree that the Respondent's ac-
tions in this case, completely devoid of any impli-
cations of retribution, restrained or coerced Helton
in the exercise of his Section 7 rights. Helton had
ready access to other, equally effective, means of
distribution.3 The Respondent did not discipline or
threaten Helton because of his actions. Indeed, the
Respondent's agents did not inform Helton it was
they who removed the material until questioned by
him. Consequently, because we have not found that
the Respondent's actions in this case have re-
strained or coerced Helton in the exercise of his
Section 7 rights, we shall dismiss the complaint.
i Also see Container Corporation of America, 244 NLRB No. 53 (1979).
2 We have no quarrel with the holding in N.L.R.B. v. Magnavox Com-
pany of Tennessee, 415 U.S. 322 (1974); it is the law. But, unlike our dis-
senting colleague, we find that it is not controlling. Not only does Mag-
navox deal with Sec. 8(a)l), but it also involved whether or not a union's
agreement to a presumptively invalid no-distribution rule-a rule clearly
restricting the Sec. 7 rights of any opposing union faction-was a binding
waiver of those individual rights. There is no such restriction at issue in
this proceeding. Here the Respondent, rather than waiving a right that
was not its own, acquired the use of a bulletin board on the Employer's
premises for union purposes. Moreover, union policing of a union bulletin
board is not the equivalent of the blanket denial to adversaries of "equal
access to and communications with their fellow employees." Cf. Magna-
vox, supra at 326.
3 The record is clear that PROD literature is distributed in the break-
room Without any action being taken by either the Employer or the Re-
spondent, and Helton could also have posted the material on the all-pur-
pose bulletin board
TEAMSTERS LOCAL 515
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER JENKINS, dissenting:
The undisputed facts are that the Respondent
permitted its members free use of the official union
bulletin board in the plant for the dissemination of
all types of information, whether union-related or
not, yet it curtailed that freedom of expression
when Helton, a member of both the Respondent
and a dissident group of Teamsters known as
PROD, posted on the board several PROD news-
letters critical of the Teamsters and its leadership
which tile Respondent promptly removed. My col-
leagues have found that the Respondent's suppres-
sion of Helton's reviews neither restrained nor co-
erced him in the exercise of his Section 7 rights be-
cause of the absence of "any implication of retribu-
tion" and the availability of means of communica-
tion other than the bulletin board. In my view,
those factors are irrelevant.
The underlying concept involved has been ad-
dressed in N.L.R.B. v. Magnavox Company, 415
U.S. 322 (1974), where the Court was concerned
with the even-handed dissemination of employee
views concerning unions, whether for or against,
and treated as a nullity the union's contractual
waiver of a no-distribution rule which had the
effect of stifling the dissemination of antiunion
views. In reaching its conclusions, the Court (at
325-326) stated that "The place of work is a place
uniquely appropriate for dissemination of views
concerning the bargaining representative and the
various options open to the employees," that "the
rights of the employees to exercise their choice of
a bargaining representative is involved-whether to
have [none], or to retain the present one, or to
obtain a new one. When the right to such a choice
is at issue, it is difficult to assume that the incum-
bent union has no self-interest of its own to serve
by perpetuating itself as the bargaining representa-
tive. ... Moreover, a limitation of the right of in-
plant distribution of union literature to employees
opposing the union does not give a fair balance to
Sec. 7 rights .... For employees supporting the
union have as secure Sec. 7 rights as those in oppo-
sition .... It is the Board's function to strike a
balance among 'conflicting legitimate interests'
which will 'effectuate national labor policy,' in-
cluding those who support versus those who
oppose the union." In addition, the Court found
that, within the context of the issue, the availability
of alternate channels of communication was imma-
terial.
The Court's rationale controls this case, in which
there is a plain imbalance in the application of Sec-
tion 7 rights. While a union may waive the right to
distribute its own institutional literature, it cannot
waive or preclude the employees' right to disse-
mintate literature pertaining to their union views. I
conclude, therefore, as did the Administrative Law
Judge, that the Respondent's conduct towards
Helton constitutes an unlawful "restriction upon
employees when they begin to question the quality
of their representation." I agree with the Respon-
dent's concession that Section 7 rights are in-
volved, but not with its argument, which my col-
leagues have adopted, that those rights must be bal-
anced against the Respondent's "right" to restrict
posting on its bulletin board to only those views fa-
vorable toward it. Indeed, it is difficult to conceive
of a greater restraint or coercive impact on Section
7 rights than that which suppresses freedom of ex-
pression concerning matters inherent in that sec-
tion. And lack of a threat of reprisal does not le-
gitimize the action, but if present would simply
constitute an additional violation of the Act.
I would find, therefore, that the censorship
which the Respondent imposed upon Helton re-
strained and coerced him in the exercise of his Sec-
tion 7 rights. Inasmuch as my conclusions are not
predicated on the disparate application and use of
the bulletin board theory advanced by the Admin-
istrative Law Judge, I find it unnecessary to con-
sider his observation that Section 8(b)(1)(A) would
not have been violated "had the use of the bulletin
board been confined strictly to official business of
the Union."
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
proceeding under the National Labor Relations Act, as
amended, 29 U.S.C. 151, et seq., herein called the Act,
was heard before me on June 19, 1979, at Chattanooga,
Tennessee, based upon a complaint and notice of hearing
issued by the Regional Director for Region 10 (Atlanta,
Georgia), on March 7, 1979, growing out of a charge
filed by Charles E. Helton, an individual, alleging that
Teamsters Local 515, herein called the Respondent or
Union, had violated Section 8(b)(l)(A) of the Act by in-
terfering with the right of employees to engage in statu-
torily protected activity.
Upon the entire record, including consideration of the
post-trial brief filed by the Respondent and oral argu-
ment by the counsel for the General Counsel, and upon
substantial reliable evidence, I make the following:
TEAMSTERS LOCAL 15 85
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The complaint alleges, the answer admits, and I find
that Roadway Express, Inc., herein Roadway or the Em-
ployer, is, and has been at all times material herein, a
corporation with an office and place of business located
at Chattanooga, Tennessee, where it is engaged in the in-
terstate transportation of freight. During the 12-month
period preceding the issuance of the complaint herein,
which is a representative period, Roadway derived rev-
enue in excess of $50,000 from the interstate transporta-
tion of freight. Accordingly, I find that Roadway is an
employer as defined in Section 2(2) of the Act, engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Respondent herein is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
I. THE UNFAIR LABOR PRACTICES
Teamsters Local 515 represents the employees of
Roadway at its Chattanooga terminal; at the time of the
events giving rise to this case there was in effect a col-
lective-bargaining agreement between Roadway and the
Respondent. Article 19, section 2, thereof provides:
The Employer agrees to provide suitable space for
the union bulletin board in each garage, terminal or
place of work. Postings by the union on such
boards are to be confined to official business of the
union.
In late 1978 Roadway provided three separate bulletin
boards located in the employees' "breakroom." Accord-
ing to the Charging Party, Helton, the largest of these
bulletin boards was under glass and locked and was used
exclusively by Roadway for posting "work rules, safety
notices . . . and union notices put there by the Compa-
ny...." Over the "change machine" was a smaller "all-
purpose board" which was, according to Helton, used by
the Company, the Union, and the employees, and was
commonly known as the "sick fund" board. The third
bulletin board was located over the water fountain and
was used primarily by the Union for posting its official
notices to employees. However, it is admitted that this
bulletin board was also used by employees and nonem-
ployees, for posting notices such as "church revivals, and
cars for sale, homes for sale . . . the centerfold of 'play-
boy' . . . outside real estate companies . . . CB coffee
breaks ... " and nonunion political campaign material
for local, county, and state elections. In short, it is ad-
mitted that there were no restrictions on the use of this
bulletin board by either Roadway or the Union until De-
cember 1978.
Some members of Local 515 employed at Roadway
were also members of an organization called Professional
Drivers Council, commonly known as, or nicknamed,
PROD. PROD is a nationwide rank-and-file organization
within the Teamsters and exists chiefly to achieve refor-
mation of the Teamsters Union. Roadway Express, Inc.,
239 NLRB No. 76 (1978). Charles Helton, who joined
PROD in October 1978, testified that his understanding
of the purpose of PROD was to reform the Teamsters by
bringing to the members' attention corruption within the
Union and to disseminate information concerning gov-
ernmental agencies which could assist in solving various
problems. A prerequisite for joining PROD is member-
ship in the Teamsters Union.
Prior to December 14, 1978, Helton received from
PROD a copy of its newsletter entitled "Prod Dispatch,"
which was accompanied by a newspaper article dealing
with Internal Revenue Service charges brought against a
Las Vegas gambler for $9.5 million in back taxes. Ac-
cording to the article the Teamsters pension fund had
loaned the gambler $146 million since 1974. The article
and the accompanying PROD editorial can be character-
ized conservatively as extremely critical of the Teamsters
and its leaders. On December 14, Helton posted this arti-
cle and editorial on the bulletin board over the water
fountain, which was generally referred to as the union
bulletin board. The parties stipulated that Job Steward
Don Hannah removed the article on instructions of
Local Business Agent Bobby Perkins. When Helton con-
fronted Perkins about the removal of the PROD materi-
al, Perkins told him "that being a union official he had
the legal right to add to or delete from that board, what-
ever he saw fit," and kept asking Helton, "[D]o you dig
PROD?"'
This scenario was repeated on January 8, 1979, when
Helton posted a copy of the Prod Dispatch, which ap-
pears to be an official publication of PROD, on the same
bulletin board. It is not denied that Job Steward Jake
Everett forthwith removed the posting.2
The Prod Dispatch posted by Helton on January 8
was also extremely critical of the Union and its leader-
ship and singled out a number of union officials and at-
tributed improper or illegal conduct to them.
Perkins testified that he received copies of most of the
PROD literature and decided that he should not permit
it to be posted because:
It was derogatory, it was adverse toward our local
union and the Teamsters in general. And, I felt it
shouldn't be there because it created controversy
among the members . . . I felt it should not go on
the board ...
I At the hearing Perkins testified in the same vein, contending that the
Union negotiated with the Company for all the bulletin hoards and it
could police whatever was posted there
2 Shortly after this event, Roadway removed all three bulletin boards
from the breakroom in order to paint the walls When this was accom-
plished only two bulletin boards were replaced and they were both under
glass and locked. Apparently the Company uses one board and the Union
the other. However, the "sick fund" information is posted on one, with
the Company's permission, and according to Helton, some personal items,
such as items for sale had been posted, but "[N]ot to the extent they once
did"
After both the bulletin boards were placed under glass and locked,
Helton requested, and was denied, permission by the terminal manager to
post PROD literature on the bulletin hoards This incident provoked the
filing of charges against Roadway by Helton, which were dismissed by
the Regional Office
TEAMSTERS LOCAL 55 5
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent introduced into evidence several
pieces of PROD literature and in its brief cites numerous
excerpts from the material which are highly critical of
the Union and allegations of corruption within the
Union. 3
IV. CONTENTIONS OF THE PARTIES
The General Counsel contends that the Union's re-
moval of the PROD literature from the bulletin board on
December 14, 1978, and January 8, 1979, interfered with
employees' Section 7 rights in violation of Section
8(b)(1)(A) of the Act. This contention is predicated on
the theory that the Respondent had permitted all other
types of notices to be posted, including personal, reli-
gious, and social notices and that the PROD literature
sought to be posted dealt with promotion of safety and
internal union reforms and was clearly a protected con-
certed activity. The General Counsel appears to concede
that, had the bulletin board remained pure, i.e., used only
by the Union for the posting of materials relating to "of-
ficial business of the Union" as provided in the contract,
there would be no violation for the prohibition of post-
ing PROD literature.
The Respondent contends that it did not violate Sec-
tion 8(b)(l)(A) by removing the PROD literature and
argues that its allowing the posting of noncontroversial,
nonunion-related materials, such as personal, religious,
and social notices to be posted . . . "did not create an
automatic right in a group that is opposed politically to
the incumbent officers and that vilifies the union with
such statements as corruptions, anti-democratic, etc, a
right to utilize the bulletin board of the Union." It argues
that the bulletin board is an arm of the Local Union
which was negotiated and, "in that facility, is the spokes-
man for the Local Union." Thus, it would conclude that
the Union has a right to control the bulletin board since
it did not interfere with any other means of distributing
the literature available to it. Finally, the Respondent
argues that the "vilifying language" contained in the lit-
erature could lead to serious altercations between parties,
especially if the government were ordering the Union to
allow it to be posted on its own bulletin board.
V. ANALYSIS AND CONCLUSION
The Respondent asserts that the Board has not yet de-
cided the issue presented here.
The Respondent makes no contention that Helton's ac-
tivities here in support of PROD are not pertinent to
matters encompassed by Section 7 of the Act. PROD ac-
tivity not only extends to reform of the Union but also
serves as a vehicle for employee expression of concerns
over their conditions of employment. Such activity is
clearly protected by Section 7 of the Act. See Roadway
Express, Inc., 239 NLRB No. 76, wherein the Board
found that the discharge of an employee for engaging in
PROD activity violated Section 8(a)(1) of the Act; and
Transcon Lines, 235 NLRB 1163 (1978), wherein the
Board found that an employer's interference with the dis-
tribution of PROD literature violated Section 8(a)(1).
That Helton's activity in posting the PROD notices, lit-
' The foregoing facts, as found, are not in dispute.
erally inviting his fellow employees to join with him in
union activities, constitutes protected concerted activity
as intended in the statute, cannot be denied. Republic Avi-
ation Corporation v. N.L.R.B., 324 U.S. 793 (1945);
N.L.R.B. v. Magnavox of Tennessee Company, 415 U.S.
322 (1974).
In my view this case fits squarely into the logic under-
lying the Board's case law dealing with the discrimina-
tory application of a valid no-solicitation rule. Here the
Union negotiated for a bulletin board for its use, "to be
confined to official business of the Union." Local busi-
ness agent, Bobby Perkins, testified that he considered all
the bulletin boards to be negotiated by the Union and
clearly considered it the Union's responsibility to police
their usage. The Union chose, at least since 1967, not to
restrict the bulletin board or boards to official union
business as provided in the contract. 4 Since the Union
elected to permit the bulletin board that it had negotiated
for its official use to be used freely by employees for the
posting of personal, religious, and social notices, it
cannot now prohibit the use of the bulletin board for the
posting of material critical of the Union. True, had the
use of the bulletin board been confined strictly to official
business of the Union, there would be no violation here
of Section 8(b)(1)(A). However, such is not the case."
I find it immaterial to the issue here that the employ-
ees were free to, and did, disseminate the PROD litera-
ture to employees by leaving it on tables in the break-
room and in other ways. Similarly, the Respondent's
contention that employees were likely to mistake the
PROD material for official Teamsters material is without
merit. While the December 14 posting did not state on
its face that it was published or disseminated by PROD,
a reading of the literature clearly discloses that it was a
product of PROD.
Finally, contrary to the Respondent's contention, I
cannot conclude that the material posted by Helton lost
statutory protection because of its "vilifying language."
While the material was certainly controversial and aimed
at bringing about a reform of the Union, it was not so
offensive, flagrant, violent, or extreme as to render it un-
protected. See Dreis & Krump Manufacturing, Inc., 221
NLRB 309 (1975). There can be no restriction upon em-
ployees when they begin to question the quality of their
representation. The Respondent's contention that such
literature could lead to altercations between parties is
mere conjecture and without any evidentiary support.
In both oral argument and in brief, the Respondent
argues, in effect, that it should not be forced to allow its
members who are dedicated to reforming the Union,
which encompasses the ousting of the present leadership,
to utilize its bulletin boards for the dissemination of their
views. As heretofore indicated, had the bulletin board
been restricted to the exclusive use of the Union for its
official business, I would agree with the Respondent.
However, such was not the case. The Respondent cannot
now restrict its usage simply because the items posted
are critical of it.
I must presume that the Employer condoned the breach of the con-
tract provision restricting the use of the bulletin board to official union
business.
5 Cf. Vincent's Steak House, Inc., 216 NLRB 647 (1975).
TEAMSTERS LOCAL 515 87
Accordingly, for the foregoing reasons, I find that the
Respondent has violated Section 8(b)(1)(A) of the Act by
removing statutorily protected literature from the bulle-
tin board on the Employer's premises which was placed
there by its members.
CONCLUSIONS OF LAW
1. Jurisdiction is properly asserted in this proceeding.
2. By removing from the bulletin board on Roadway's
premises literature placed there by employees, which
was related to the exercise of Section 7 rights, the Re-
spondent has interfered with, restrained, and coerced em-
ployees and its members in the exercise of those rights,
in violation of Section 8(b)(1)(A) of the Act.
3. The unfair labor practice described above affects
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
It having been found that Respondent engaged in an
unfair labor practice in violation of Section 8(b)(1)(A) of
the Act, it shall be ordered to cease and desist therefrom
and to take certain affirmative action designed to effectu-
ate the purposes of the Act. Such affirmative action shall
be the posting of the informational notice to members
and employees attached hereto and entitled "Appendix"
and to comply with its terms. Said notice shall be posted
on all bulletin boards on the premises of Roadway Ex-
press, Inc., at Chattanooga, Tennessee, where the Union
posts material relating to official union business as well
as in the Union's Chattanooga offices and meeting places
for members.
[Recommended Order omitted from publication.]