Unfair Labor Practices case 28 cb 107986

UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD

REGION 28

AMALGAMATED TRANSIT UNION LOCAL 1433, AFL-CIO (Veolia Transportation Services, Inc. - Tempe) Case

and

28-CB-I07986

DAVID AZBELL, an Individual

COMPLAINT AND NOTICE OF HEARING This Complaint and Notice of Hearing is based on a charge filed by David Azbell, an Individual (Azbell). It is issued pursuant to Section 10(b) of the National Labor Relations Act, 29 U.S.C. ยง 151 et seq. (the Act), and Section 102.15 of the Ru1es and Regulations of the National Labor Relations Board (the Board) and alleges that the Amalgamated Transit Union Local 1433, AFL-CIO (Respondent) has violated the Act as described below: 1.

The charge in this proceeding was filed by Azbell on June 25, 2013,

and a copy was served by regular mail on Respondent on June 26, 2013.

2.

(a)

At all material times, Veolia Transportation Services, Inc. -

Tempe (the Employer) has been a corporation with an office and place of business in Tempe, Arizona (the Employer's facility) and has been engaged in the operation of a local passenger transit system servicing the Phoenix, Arizona metropolitan area. (b)

In conducting its operations during the 12-month period ending

June 26, 2013, the Employer purchased and received at the Employer's facility goods valued in excess of $50,000 directly from points outside the State of Arizona.

.' r r

(c)

In conducting its operations during the 12-month period ending

June 26,2013, the Employer derived gross revenues in excess 0[$250,000. (d)

At all material times, the Employer has been an employer

engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3.

At all material times, Respondent has been a labor organization within

the meaning of Section 2(5) of the Act. 4.

At all material times, the following individuals held the positions set

forth opposite their respective names and have been agents of Respondent within the meaning of Section 2(13) of the Act: Bob Bean Michael Cornelius 5.

(a)

President Financial Secretary-Treasurer

At all material times, by virtue of Section 9(a) of the Act,

Respondent has been the exclusive collective-bargaining

representative of the Employer's

employees classified as bus operators (the Unit). (b)

During the period from about July 1, 2011 to June 30, 2013, the

Employer and Respondent entered into and maintained a collective-bargaining

agreement

covering the Unit (the Agreement), which provided at Article 27: Section 1:

The Company agrees to deduct from the wages of any employee included in the bargaining unit, the regular monthly membership dues for the Union and initiation fees or other authorized assessments levied in a legal manner or the service fee equivalent, and will forward such dues and assessments, and service fees to the properly accredited officer of the Union on or before the fifteenth (1Sth) work day following the date in which dues or service fee equivalents are withheld from wages as long as the Union is enrolled in pay mode.

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Section 2:

The individual authorization or directives shall contain authorization for deduction of requested monthly membership dues, initiation fees, assessments, or the service equivalent. The individual authorizations will specify when a member will be eligible for withdraw [sic] from Union membership.

Section 3:

The Company agrees to deduct from the paycheck of each employee who has so voluntarily authorized it, contributions to the ATU Committee on Political Education (COPE), contributions and uniform assessments as required, and forward to the Union by the twenty-first (21 st) of the month. The Union agrees to indemnify and save Veolia Transportation harmless from any and all liabilities resulting from compliance with the above section.

(c)

At allmaterial times, Respondent has maintained and been a

party to a dues check-off authorization procedure that provides, in pertinent part: I hereby apply for membership in the above named Union and authorized said Union to act for me as my collective bargaining agent in all matters pertaining to wages, benefits, hours of employment and all other terms of employment.

*** I hereby assign to Local #1433 of the Amalgamated Transit Union from any wages earned or to be earned by me as your employee, my periodic dues, initiation fee and assessments, or the service fee equivalent, in such amounts as are now or hereafter established by the Union and become due to it as my membership dues, or the service fee equivalent in said Union. I authorize and direct you to deduct and withhold such amounts from my pay and to remit the same to said Union. This assignment, authorization and direction shall be irrevocable for a period of one year from the date hereof or until termination of the collective bargaining agreement between the employer and the Union, whichever occurs sooner. I understand that the Union membership is not a condition of this authorization and that this authorization may be revoked as specifically provided by its terms. I agree and direct that this assignment be renewed, and shall be irrevocable for successive periods of one year each or for the period of each succeeding applicable collective bargaining agreement between the employer and the Union, whichever shall be shorter, unless written notice is given by me to the Union not more than (29) days and not

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less than (10) days prior to the expiration of each period of one year, or of each applicable collective bargaining agreement between the employer and the Union, whichever occurs sooner.

6.

(a)

About June 19,2013, Azbell notified Respondent that he had

resigned his membership in Respondent. (b)

About June 19,2013, Azbell, who had previously become a

party to a dues check-off agreement containing the language described above in paragraph 5(c), notified Respondent in writing of his revocation of his check-off authorization. (c)

Since about June 20, 2013, Respondent has failed and refused to

honor Azbell's revocation of his check -off authorization by continuing to receive, accept, and retain money from Azbell's wages remitted to Respondent by the Employer. (d)

By the conduct described above in paragraphs 6(a) through 6(c),

in connection with its exclusive representative status as described above in paragraph 5(a), Respondent has failed to represent Azbell for reasons that are arbitrary, discriminatory, or in bad faith and has breached the fiduciary duty it owes to said employee and the Unit.

7.

By the conduct described above in paragraph 6, Respondent has been

interfering with, restraining, and 'coercing employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section 8(b)(1)(A) of the Act. 8.

The unfair labor practices of Respondent described above affect

commerce within the meaning of Section 2(6) and (7) of the Act.

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ANSWER REQUIREMENT Respondent is notified that, pursuant to Sections 102.20 and 102.21 of the Board's Rules and Regulations, it must file an answer to the complaint. The answer must be

received by this office on or before September 13,2013, or postmarked on or before September 12, 2013. Unless filed electronically in a pdf format, Respondent should file an original and four copies of the answer with this office. Respondent should serve a copy of the answer on each of the"other parties.

An answer may also be filed electronically through the Agency's website. To file electronically, go to www.nlrb.gov.click

on File Case Documents, enter the NLRB Case

Number, and follow the detailed instructions. The responsibility for the receipt and usability of the answer rests exclusively upon the sender. Unless notification on the Agency's website informs users that the Agency's E-Filing system is officially determined to be in technical failure because it is unable to receive documents for a continuous period of more than 2 hours after 12:00 noon (Eastern Time) on the due date for filing, a failure to timely file the answer will not be excused on the basis that the transmission could not be accomplished because the Agency's website was off-line or unavailable for some other reason. The Board's Rules and Regulations require that an answer be signed by counselor non-attorney representative for represented parties or by the party if not represented.

See Section 102.21. If the answer being

filed electronically is a pdf document containing the required signature, no paper copies of the answer need to be transmitted to the Regional Office. However, if the electronic version of an answer to a complaint is not a pdf file containing the required signature, then the E-filing rules require that such answer containing the required signature continue to be submitted to the Regional Office by traditional means within three (3) business days after the date of electronic

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filing. Service of the answer on each of the other parties must still be accomplished by means allowed under the Board's Rules and Regulations. The answer may not be filed by facsimile transmission. Ifno answer is filed, or if an answer is filed untimely, the Board may find, pursuant to a Motion for Default Judgment, that the allegations in the complaint are true.

NOTICE OF HEARING PLEASE TAKE NOTICE THAT on January 28, 2014, at 9:00 a.m. (local time), at the Hearing Room, National Labor Relations Board, 2600 North Central Avenue, Suite 1400, Phoenix, Arizona, and on consecutive days thereafter until concluded, a hearing will be conducted before an administrative law judge of the National Labor Relations Board.

At the hearing, Respondent and any other party to this proceeding have the right to appear and present testimony regarding the allegations in this complaint. The procedures to be followed at the hearing are described in the attached Form NLRB-4668.

The procedure to request a

postponement of the hearing is described in the attached Form NLRB-4338.

Dated at Phoenix, Arizona, this 30th day of August 2013.

Cornele A. Overstreet, Regional Director Attachments

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FORM NLRB-4338 (6-90)

UNITED STATES GOVERNMENT NA TIONAL LABOR RELATIONS BOARD NOTICE

Case

28-CB-I07986

The issuance of the notice of formal hearing in this case does not mean that the matter cannot be disposed of by agreement of the parties. On the contrary, it is the policy of this office to encourage voluntary adjustments. The examiner or attorney assigned to the case will be pleased to receive and to act promptly upon your suggestions or corrunents to this end.

An agreement between the parties, approved by the Regional Director, would serve to cancel the hearing. However, unless otherwise specifically ordered, the hearing will be held at the date, hour, and place indicated. Postponements will not be granted unless good and sufficient grounds are shown and the following requirements are met: (1) The request must be in writing. An original and two copies must be filed with the Regional Director when appropriate under 29 CFR 102.16( a) or with the Division of Judges when appropriate under 29 CFR 102.16(b).

(2) Grounds must be set forth in detail; (3) Alternative dates for any rescheduled hearing must be given; (4) The positions of all other parties must be ascertained in advance by the requesting party and set forth in the request; and (5) Copies must be simultaneously served on all other parties (listed below), and that fact must be noted on the request.

Except under the most extreme conditions, no request for postponement will be granted during the three days immediately preceding the date of hearing.

Amalgamated Transit Union Local 1433, AFL-CIO 11024 North 28th Drive, Suite 185 Phoenix, AZ 85029-4384 Veolia Transportation Services, Inc. Tempe Division 2050 West Rio Salado Parkway Tempe, PLl 85281-2802

Mr. David Azbell 7140 East Broadway Road, Apt 2 ~esa,)LZ 85208-1945

Michael J Keenan, Attorney at Law Ward, Keenan & Barrett, P.C. 3838 North Central Avenue, Suite 1720 Phoenix,PLl 85012-1994