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November 10, 1992



The opinion of the court was delivered by: DAVID N. EDELSTEIN


EDELSTEIN, District Judge:

 Application XC involves an employer's rights and obligations toward members of the IBT who have been the subject of disciplinary proceedings. In his November 18, 1991 decision in Application LX, the Independent Administrator permanently barred from the IBT several former officers of IBT Local 707, including David Morris and James Buckley. The Independent Administrator found that they had knowingly associated with a member of La Cosa Nostra, Nicholas Grancio. This Court and the Second Circuit affirmed the Independent Administrator's decision. See January 16, 1992 Memorandum & Order, 782 F. Supp. 238 (S.D.N.Y. 1992), aff'd, Nos. 92-6056, 6058, 6088, slip op. (2d Cir. Sep. 15, 1992).

 Despite their banishment from the IBT, Mr. Buckley and Mr. Morris sought reinstatement with their employers, Mr. Buckley at Roadway Express, Inc. ("Roadway") and Mr. Morris at Yellow Freight Systems, Inc. ("Yellow Freight"). While Yellow Freight refused to allow Mr. Morris to return to work, *fn1" Roadway permitted Buckley to return to his job. Subsequently, between December 1991 and June 1992, correspondence was exchanged among the Independent Administrator, Mr. James T. Grady, then-IBT general counsel, Mr. James P. Hoffa, counsel for Local 707, and Mr. Daniel L. Hornbeck, general counsel for Yellow Freight. In this correspondence, these individuals requested guidance and set forth their views on the issue of whether Mr. Morris and Mr. Buckley could be reinstated. See Application XC of the Independent Administrator, Exhibits 4-14 (September 8, 1992). In a letter dated June 25, 1992, the Independent Administrator indicated his position that "Morris and Buckley may be removed [by the Union] from their respective seniority lists provided the Union controls those lists. In addition, I highlight the authority which would authorize an employer to fire an employee who is 'objectionable' to other employees." Letter from Frederick B. Lacey, Independent Administrator, to Mr. John LaFrancesca, Secretary-Treasurer of Local 707 (June 25, 1992) (on file in the Southern District of New York).

 In a letter dated August 24, 1992, Mr. Earl R. Pfeffer of Cohen, Weiss & Simon ("CW&S"), writing on behalf of Local 707, requested "clarification of the rights and duties of the parties." Letter from Earl R. Pfeffer, counsel for Local 707, to Judge David N. Edelstein (August 24, 1992) (on file in the Southern District of New York). CW&S first requested a clarification of its own duties concerning Mr. Morris. It contends that because it has a duty under federal labor law to provide fair representation to all employees in a given bargaining unit, and because Morris' claim for reinstatement under the IBT's collective bargaining agreement with Yellow Freight has merit, CW&S is obligated to represent Mr. Morris at the grievance hearing. As to Mr. Buckley and Mr. Morris, CW&S requested clarification on behalf of the Executive Board of Local 707 in light of possible disciplinary action against Local 707's Executive Board in the event that it refuses to diminish Mr. Buckley's and Mr. Morris' seniority rights. Letter from Frederick B. Lacey, Independent Administrator, to Charles M. Carberry, Investigations Officer (August 12, 1992) (on file in the Southern District of New York).

 The Independent Administrator requests an order from this Court that:

 (1) In the event IBT Local 707 controls Morris' and Buckley's seniority lists, the Local may remove Morris and Buckley from those lists given their banishment from the IBT for knowingly associating with a member of the LCN; and

 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. ยง 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 ...

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