(2) Morris' and Buckley's employers may discharge them from their employment if the employers find them to be objectionable to their co-workers.
Application XC of the Independent Administrator, at 13-14 (September 8, 1992).
The National Labor Relations Act ("NLRA") prohibits an employer or a union from discriminating against an employee who has been denied union membership. 29 U.S.C. § 158(b)(2). It is clear that the NLRA prohibits discrimination based upon non-membership. See NLRB v. United Marine Division, Local 333, Nat'l Maritime Union, 417 F.2d 865, 866-67 (2d Cir. 1969). Nevertheless, it is equally clear that a union may diminish a former member's seniority rights without committing an unfair labor practice in violation of the NLRA.
In NLRB v. International Union of Operating Engineers, Local 18, 555 F.2d 552, 553-54 (6th Cir. 1977), the court found that a union did not violate Section 158(b)(2) when it diminished the seniority rights of a member who attempted to sabotage an ongoing union election. Similarly, in Philadelphia Typographical Union No. 2, 189 N.L.R.B. 829 (1971), the National Labor Relations Board (the "Board") found that a union did not violate the NLRA when it removed from its seniority lists and requested that an employer terminate a union member who embezzled $ 35,000 from the union treasury. In each of these cases, the tribunals found that the unions acted properly because in diminishing seniority rights, they were motivated not by the individuals' status as non-members, but by their misconduct. Thus, a union may lawfully diminish or terminate a former member's seniority rights in response to misconduct. In this case, Mr. Morris and Mr. Buckley knowingly associated with a high ranking member of organized crime. In response to such egregious wrongdoing, Local 707 may, to the extent it controls the seniority system at Roadway and Yellow Freight, modify Mr. Morris' and Mr. Buckley's seniority status.
In addition, Morris' and Buckley's employers may discharge them from their employment if the employers find them to be objectionable to their coworkers. While under the NLRA, it is an unlawful labor practice to discriminate on the basis of non-membership, federal labor law does not preclude employers from discharging employees for legitimate reasons. Cf. NLRB v. Future Ambulette, Inc., 903 F.2d 140, 143 (2d Cir. 1990) (employer may discharge employee for legitimate motive); Abbey's Transp. Serv., Inc. v. NLRB, 837 F.2d 575, 579 (2d Cir. 1988) (same); Meiri v. Dacon, 759 F.2d 989, 997 (2d Cir. 1985) (Title VII plaintiff's "profound inability" to get along with coworkers was legitimate nondiscriminatory reason for discharge). Consistent with the NLRA, an employer may fire unionized employees who are objectionable to their coworkers. See Sheet Metal Workers Int'l Ass'n, Local 67, 201 N.L.R.B. 1050 (1973). In this case, twenty-three Roadway employees and Local 707; members signed a letter, dated September 4, 1992 and addressed to the Independent Administrator, in which they object to the continued employment of Mr. Buckley. See Letter from 23 Roadway employees and Local 707 members to Frederick B. Lacey, Independent Administrator (September 4, 1992) (on file in the Southern District of New York). Roadway's and Yellow Freight's legitimate interest in maintaining a harmonious work environment, preventing labor unrest, and in not employing individuals with ties to organized crime, justifies their refusal to reinstate Mr. Morris and Mr. Buckley.
Moreover, Local 707 is not required to support the continued employment of either Mr. Morris or Mr. Buckley. The Local's duty under the NLRA does not extend to offering blind support for former union officials who are removed from office and banished from the IBT due to organized crime connections. In International Alliance of Theatrical Stage Employees, Local No. 7, 254 N.L.R.B. 154 (1981), the Board noted an exception to the general rule that prohibits a union from encouraging an employee's discharge. The Board found that a union may encourage discharge where such an action is "necessary to the effective performance of its function of representing its constituency." See also Sheet Metal Workers Int'l Ass'n, Local 67, 201 N.L.R.B. 1050, 1973 N.L.R.B. LEXIS 312, *27 (Mar. 1, 1973) (union does not violate NLRA when it presses "upon the employer the attitude of [its] members"). In this case, Mr. Morris' and Mr. Buckley's coworkers, who are members of Local 707, object to their continued employment. See Letter from 23 Roadway employees and Local 707 members to Frederick B. Lacey, Independent Administrator (September 4, 1992) (on file in the Southern District of New York). It is not possible that the Union can adequately represent these members and also support Mr. Morris and Mr. Buckley. In this case, the Union has only one legitimate constituency: the current membership of Local 707, who as this Court has noted, have an "immense stake in a Union free from the insidious effect of LCN influence." May 15, 1992 Opinion & Order, 792 F. Supp. 1346 (S.D.N.Y. 1992).
Application XC of the Independent Administrator is granted.
DATED: November 10, 1992
New York, New York
David N. Edelstein