American Telephone & Telegraph Co.

National Labor Relations Board - Board Decisions

Aug 23, 1977

231 N.L.R.B. 556 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Telephone & Telegraph Co. and Robert D.
Berkey. Case 27-CA-4608
August 23, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 28, 1976, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed cross-exceptions and a supporting brief
and a brief in opposition to the General Counsel's
exceptions.1
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
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 Administrative Law Judge and
hereby orders that the complaint is dismissed in its
entirety.
I Respondent has requested oral argument. This request is hereby denied
as the record, the exceptions, and the briefs adequately present the issues
and the positions of the parties.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard at Denver, Colorado, on September 21-24,
1976, based on a charge filed August 4, 1975, and
complaint issued May 26, 1976, alleging that American
Telephone & Telegraph Co., herein called Respondent or
AT&T, violated Section 8(a)(1) and (3) of the Act by
imposing disciplinary suspension on 31 employees for their
refusal to cross a picket line on July 24, 1975.
Upon the entire record, my observation of the witnesses,
and consideration of briefs filed by General Counsel and
Respondent, I make the following:
I All dates and named months hereafter are in 1975, unless indicated
otherwise.
231 NLRB No. 110
FINDINGS OF FACT AND RESULTANT CONCLUSION
OF LAW
Respondent is a New York corporation engaged at its
Denver, Colorado, facility in providing long distance
interstate and international telecommunications services.
Such operations annually yield a gross volume of business
in excess of $100,000, while causing purchase and receipt of
goods and materials valued in excess of $50,000 directly
from sources outside Colorado. I find that Respondent is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The case involves Respondent's Long Lines Department
housed in several interconnected Denver office buildings
owned by The Mountain States Telephone and Telegraph
Company, herein called Mountain Bell.' This separately
incorporated affiliate of AT&T leases space to Long Lines,
and employees of each entity are unsegregated with respect
to building entrance and general movement in and about
the jointly occupied premises. Identifying street level
addresses are 1425 Champa Street, 931 14th Street, and 930
15th Street, while a small public office is situated at the
Champa and 14th Streets corner. The immediate vicinity is
downtown metropolitan in character; the buildings occu-
pying most of a square block, with a miscellany of stores,
restaurants, parking lots, and offices, plus a large conven-
tion center adjoining and usual vehicular traffic passing by.
Reflecting collective-bargaining relationships of long
duration, current contracts exist between Long Lines and
Communications Workers of America (CWA) Local 8050
and between Mountain Bell and CWA Local 8412. These
contracting unions are herein called Local 8050, Local
8412, or the Union(s) as context warrants. The Long Lines
contract covers defined administrative, construction, oper-
ations, and service employees; that of Mountain Bell
recognizes the contracting Union as exclusive bargaining
agent for all eligible employees over a multistate area. Both
Unions are components of CWA's geographically pertinent
District 8. I find they are each labor organizations within
the meaning of Section 2(5) of the Act.
The contract between Mountain Bell and Local 8412
contains comprehensive phraseology for successive articles
headed "Grievance Procedure" and "Arbitration." As part
of such language, paragraph 5.6 provides:
It is agreed that neither the Company or its
representatives, nor the Union, its local, representatives
or members will attempt by means other than the
grievance procedure, to bring about the settlement of
any issue which is properly a subject for disposition
through the grievance or arbitration procedures.
The Long Lines/Local 8050 contract, less detailed as to
such subject matter, contains paragraph 17.10 within
article 17 - Arbitration, reading:
If, at any time, a difference arises between the Union
and the Company regarding the true intent and
meaning of a provision of this Contract, or a question
as to the performance of any obligation hereunder, a
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AMERICAN TELEPHONE & TELEGRAPH CO.
conference shall be held between representatives of the
Union and the Company in an effort to settle said
differences. If, after such conferences, the matter is not
settled, either party may institute arbitration proceed-
ings pursuant to the provisions of this Article to
determine the issue in question, it being understood
that, except where this Contract expressly provides
otherwise, the right to require arbitration does not
extend to any matter other than those expressly set
forth in this Article.
A vague rumor circulated among certain Mountain Bell
management personnel late on July 23 to the effect that
labor trouble might occur the next day. It separately
reached both Denver Main District Plant Manager
William Ford and his immediate subordinate, Customer
Service Manager Gerald Byers. They did not, however,
communicate until evening when Ford telephoned Byers to
request he arrive next morning at the extraordinarily early
time of 6 a.m. Both did so, found nothing untoward at that
particular hour, and proceeded to have coffee at a nearby
restaurant where they were joined by Staff Supervisor (for
second stage grievance handling) Brice Hodgkins, Jr.2
Byers and Hodgkins went to their respective offices, while
Ford remained at street level to observe. He saw originat-
ing activity at the Champa Street entrance, as several
persons started to carry homemade appearing signs. The
first of the staggered employee starting times for his district
was 7 a.m.3 As this hour passed he could see a high
percentage of early reportees not starting the shift. Ford
contacted second-level supervisors, directing them to
galvanize first-level supervisors in concerted efforts to
wheedle Mountain Bell employees into the building. This
occurred about 7:45 a.m., just before "the general employ-
ee body should start coming in to work." Ford then
observed Supervisors Gayle Baker, Mel Burger, and Terri
Hooker in "off-and-on" activity spanning the next 45
minutes instructing Mountain Bell employees to trust the
grievance procedure for settlement of gripes, that the
apparent "strike" was unsanctioned, and they should
report for work. About 7:30 a.m., Ford telephoned Local
8412's Denver Chief Plant Steward Virgil Truelove, asking
him to deal with the picketing situation in front of the
building and clarify the problem. Truelove proceeded
downtown immediately, picking up Local 8412 District
2 Ford testified that Hodgkins had been his tipster the day before, a role
not now recalled by the latter. While the point is of little consequence, I
believe Hodgkins was forgetful of having called Ford with such news. Ford
had. additionally, conversed late on July 23 with Stan Minarsky, district
steward for motorized employees of Mountain Bell. Minarsky had
acknowledged that indefinite rumor was afloat, but was noncommittal
concerning what he might do. It suffices to proceed with description of
events proving the rumor well founded.
3 Over 2,000 employees work in the building complex. This facility is
Mountain Bell's general headquarters and a large portion of such overall
total is attributable to that necessary staffing. Ford's own district operations
amounted to 375 employees. including 62 who were supervisory. Long Lines
employees, dispersed into work stations throughout the three buildings, were
predominantly assigned to the Denver Metro District for which District
Operations Manager Mary Flavin was in charge. A lesser number of Long
Lines personnel were also physically housed in the facility, as part of district
operations and network services for outstate Colorado under appropriately
titled Manager Joe Headrick. The total Long Lines complement was 156 on
July 24. Organizational and operational setup of Mountain Bell's occupancy
is further described, for background purposes, in The Mountain States
Steward Diana Gee on the way. They arrived shortly after
8 a.m. and began exhorting Mountain Bell employees to
commence work.4 Within minutes Truelove engaged
picketer Mike Fields, area steward of Local 8412, who said
the picketing Mountain Bell line assigners and reports
clerks would not go back to work in protest of union
slowness in processing grievances. Truelove spoke briefly
and heatedly with Fields, telling him all "had to go by the
union grievance procedure." Ford joined this discussion
briefly to add he thought the strike was "illegal," but
offered attention to the claimed dissatisfaction if the work
stoppage would end.
In the general time frame this was occurring, Local 8412
Vice President (representing traffic department employees)
Karen Vannoy busied herself telling appearing Mountain
Bell traffic employees they should go to work notwith-
standing the unusual activity. Vannoy also prevailed on
District Steward Trudy Hollis to similarly greet arriving
personnel at a 14th Street entrance. Ultimately, many
Mountain Bell employees reported for work; 44 did not
and were administered a I-day disciplinary suspension the
following day.
Staggered starting times also applied to Long Lines
personnel, the earliest at 7 a.m. with more due at 7:30 a.m.
and the majority scheduled at 7:45 a.m.5 Confronted with
the overt demonstration, numerous arriving Long Lines
employees held up near their usual entrances, preferring for
at least a time not to cross the picket lines. The
phenomenon soon reached a dimension that exacted
particular attention from both Local 8050 officers and
Long Lines management. For its part the Union was
beseiged with questions, the key ones of what employees
should do (or not do) and why going unanswered for lack
of information. On the company side, the focus was on
convincing Local 8050 officials that the job action was
intrinsically improper and a mere repetition of unwarrant-
ed self-help in repudiation of a sister Local's contract.
Communications Craftsman Robert Berkey, the Charging
Party herein, arrived for his customary shift start of 7 a.m.
and found a picket line at the 931 14th Street entrance with
participants bearing signs worded "8412" which alluded to
an "unfair" posture of Mountain Bell. Robert Berkey
spoke to pickets, determined they were CWA members,
and decided he would "honor this thing... and kind of
stay out of the way" until more was known. He soon
Telephone and Telegraph Company, 220 NLRB 516 (1975). Additionally. an
unspecified number of Western Electric Company employees work at or out
of this location. Western Electric, a manufacturing, selling, servicing, and
installation arm of AT&T, is party to collective-bargaining agreements with
CWA, including one covering certain employees in the industrial field forces
of the Service Division in Colorado. See Communications Workers of
America, AFL-CIO, 204 NLRB 782 (1973); CWA v. Western Electric Co.. 93
LRRM 2176 (1976). As elimination of obvious inadvertence, I correct the
transcript at p. 843, I. I to show Ford's overall estimate of persons as "2 or 3
thousand."
4 At this point in time congestion had increased and the pickets, while
concentrated at the Champa Street entrance, were present at, or ambulated
to, the other entrances. The peak of picketing, occurring around 8 a.m. with
gradual phasing down until discontinued at 10 a.m., was variously estimated
by the witnesses as comprising from 6 to 20 persons.
5 As of July 24 Communications Craftsman Robert Running Bear was
on experimental schedule starting 9:30 a.m., while Communications
Craftsman Robert Martinez had prior permission to come in late that day
because of personal business.
557
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
moved around to the Champa Street entrance where a
"bunch of people" congregated. Berkey saw Local 8050
Secretary-Treasurer Kermit Clark seeming "kind of busy,"
chose not to speak with him and did not see either
Executive Vice President Gary Kubat or Denver District
Vice President Jesse Lewis before leaving the area about
8:30 a.m. Kubat and Lewis had in fact first arrived on the
scene shortly after 7:30 a.m. Neither had any prior hint of
the activity under way. They assessed the situation and
went to the nearby office of Local 8050 to attempt
telephone contact with Local 8412. This was unsuccessful
and they remained officially unsatisfied as to the character
of picketing until 11 a.m., when a District 8 functionary
verified it was unauthorized.6 By 8:30 a.m. Kubat learned
from Long Lines Special Services Staff Supervisor Forest
"Skeet" Bomar that management had established a cutoff
time of 8:45 a.m. for hesitant employees to report to work.
This fulfilled an earlier understanding reached between
Kubat and Bomar in a conversation on the street about 8
a.m. that affected managers would urgently caucus and
determine a cutoff time beyond which employees not yet in
would be barred from work for the day. As intended
Bomar, acting district operations manager for July 24
because the regular incumbent planned to be away, quickly
solicited opinions and chose 8:45 a.m. as the time best
avoiding jeopardizing operations while still according some
leeway for Local 8050 officers to communicate with
members yet honoring the picket lines. 7 Acting on this
advice Kubat circulated among his members (by then
somewhat dispersed from near the Champa Street en-
trance, down the block and over into a coffeeshop at the
14th and Champa intersection), attempting to contact "all
of the people on the cutoff time." In the course of doing
this, Kubat stated to listeners that, "they should report to
work." Lewis' course upon leaving the union office was to
speak "randomly" with pickets, learning from this they
were in protest of Mountain Bell's refusal to meet on
6The record refers vanously to "unauthorized," "unsanctioned,"
"unprotected," "illegal," "illegitimate," "unlawful," "wildcat," and "bad" in
characterization of the picketing. For convenience I shall generally hereafter
term it "unauthorized," an expression to be given fuller meaning in my
further rationale. See United Parcel Service, Inc., 205 NLRB 991 (1973), in
light of Emporium Capwell Co. v. Western Addition Community Organization,
420 U.S. 50 (1975). I here, also, note that contract language such as that of
Mountain Bell's paragraph 5.6 is routinely entitled to Sec. 301 suit
compelling arbitration, should there be actionable breach. Textile Workers
v. Lincoln Mills, 353 U.S. 448 (1957); Hanna Mining Company v. United
Steelworkers of America, 464 F.2d 565 (C.A. 8, 1972); Local Union 77,
International Brotherhood of Electrical Workers v. Puget Sound Power and
Light Company, 506 F.2d 523 (C.A. 9, 1974), cert denied 420 U.S. 992
(1975); Carpenters District Council of Denner and Vicinity, etc. v. Brady
Corporation, 513 F.2d I (C.A. 10, 1975).
7 Reference arose from certain witnesses that the ultimately understood
cutoff time was expressed as I hour following an employee's scheduled start.
Lewis testified he took the information this way and was later to telephone
Running Bear's supervisor inquiring how his special instance was interpret-
ed with "his hour not up." In contrast, Kubat testified expressly to the other
meaning and Bomar plainly described picking a clock-reckoned point,
primarily because this associated most directly to the usual morning surge of
user communications activity. I readily credit this latter version and
expressly find that 8:45 a.m. as a fixed moment in time was the managerially
imposed cutoff from entry to work by honorers.
r A detailed unravelling of certain ambiguous or garbled aspects of the
record is necessary at this point. The transcript is accurate where Innes
names Darwin Berkey and Bob Berkey as the two individuals of his
organizational function who each had a scheduled starting time on July 24
of 7 a.m., and, coincidentally, the same surname. The latter (Bob Berkey) is
grievances. Lewis participated in a second effort to contact
Local 8412, and failing this as the cutoff time approached
began responding to "numerous" questions from about 25
Long Lines employees congregated in front of 1425
Champa Street that reliable information was sparse and as
an officer of Local 8050 he was "not recommending that
they stay out; that if they stay out, it was a personal
judgment on their part."
The earliest significant tactic of Long Lines management
was Denver Special Services Operations Manager Reed
Innes' call about 7 a.m. to the home of Denver District
Operations Manager Mary Flavin, advising her of unex-
pected picketing which at the time he doubted would be
honored by many employees within his department.
However, immediately after the call one of Innes' nine
first-line supervisors reported to him that Robert Berkey
was not in to work at his regular showup time.8 Absentee-
ism accelerated as scheduled starting times were reached
and passed, a final consequence being that 23 of Innes'
employees (from among 60) failed to report to work.9
Paralleling this in point of time, four employees of Eyre's
department did not report and Martinez failed to be in at
the time expected following his completion of personal
business. Additionally, Tom Bock from Headrick's opera-
tion did not report and Clark, regularly assigned to
McCurdy's department, failed to appear for a day of
continuing ETS schooling within the building. Functional
coverage was successfully made by maintenance/repair
deferral, by supervisors performing certain craft tasks, and
by craft reassignment, coupled with the fact that local
circumstances made July 24 a light day at the center.
Flavin was telephoned again shortly before 8 a.m., this
time by Administrative Supervisor Edward Lupe advising
that "several" Long Lines employees were still in front of
the building and inquiring whether they should be given a
grace period. She asked that Headrick become involved to
establish (and notify Local 8050 of) "a reasonable amount
Charging Party for this case. Ambiguity arises where Robert Berkey's
testimony is shown to name a Darwin "Berkin" and, more significantly,
where the testimony of Denver 4A #4 Machine Operations Manager
Gordon Eyre names a "Bob" Berkey as one of two employees in his activity
that, following delay, ultimately crossed the picket line. This testimony is
also relative where the name "Berkey" is listed among several persons of
Eyre's department who were reported as not in to work by about 8 a.m., and
were then observed to be grouped outside near the Champa Street entrance
during the final three-quarter hour running of the precutoff period. It might
be concluded from this that the Berkey here referred to was Darwin, except
that Robert Berkey believed this person's reporting time was 7 a.m., while
Eyre referred to his group having no earlier reporting time than 7:30 a.m. A
further complication is that Innes' group included "H. L. (Harry)
Middleswort" as a first-line supervisor (at that time), and a name
presumably meaning the same person is given by Denver 4A #3 Machine
Operations Manager Gerald McCurdy as one of his five immediate
subordinates ("Mr. Middleswart"). Thus, some inexplicableness remains,
the resolution of which is suggested by a probability of internal functional
sharing (or overlapping) of craft and supervisory personnel. It is positive
that Charging Party Robert Berkey, hereafter referred to only as Berkey,
fully honored the picket line and was disciplined the following day for it by
his immediate supervisor. This is apparent although the variable spelling
"Harvey (L.) Middleswart/Middleswort" is shown. Subsumed in this
clarification is the further inadvertence of Berkey's testimony being reported
under the spelling "Berke."
9 The majority of these were due in at 7:45 a.m. The total of 23 includes
Running Bear, whose status shall be separately treated below. I correct the
transcript at p. 394, 1. 12, by changing, in reference to Running Bear (and
that of non-honorer Joe Duke), the inadvertence showing their starting time
as "7:30" a.m. rather than the intended 9:30 a.m.
S58
AMERICAN TELEPHONE & TELEGRAPH CO.
of time for people to make up their minds." In fact, as
described above but unknown to Lupe or Flavin as they
conversed at this point in time, Bomar was already into
that very course of action. Flavin then soon left home for
her office, arriving about 9 a.m. She implemented adminis-
trative instructions concerning emergency work stoppages,
then proceeded into day-long conferencing from which a
decision emanated that evening to discipline any absent
Long Lines employees with I-day suspension. She testified
that the particular degree was chosen because it mirrored
what Mountain Bell was doing, harmonized generally with
past instances, and seemed equitably fair considering
ample notice under the circumstances to Local 8050. Such
discipline was visited on 28 Long Lines employees the
following day, or as soon as they were available for
contact, by their immediate supervisors and on Dave
McKay, Martinez, and Clark by their respective operations
managers. Management's explicit reason for imposing
discipline was because employees "had not reported for
work."
The picketing activity inspired prompt media coverage.
By about 7:45 a.m., the first of two local TV stations had
photographer/reporter teams at work and telecasting of the
event was first aired by noon. While circumstances
changed rapidly, the essential scene was approximately 10
picketers, each a Mountain Bell employee, demonstrating
at the Champa Street entrance with signs, some of which
read: '0
Respect & be respected.
The people are fighting together. Why can't we work
together.
Is the Union owned by Mountain Bell. Who will help
us. Who can we turn to.
Are we under a dictator, or do we have representation.
If the people are unhappy who is to blame.
Ma Bell does not follow the contract.
Each of the 31 honoring Long Lines employees is placed
generally within congregations near to the picketing or that
formed close by as spontaneous group behavior. Lewis,
referring to this group as named alleged discriminatees in
paragraph V of the complaint, testified that he had seen
about "everybody on that list ... at some time during that
day." Kubat testified that he recognized nine named
persons in the group of members he addressed about 8:30
a.m. with advice that they go in. Communications
Craftsman Charles Wycoff testified credibly that shortly
before the cutoff time was reached he saw 10 named Long
Lines employees grouped on the sidewalk about 50 feet
south of the Champa Street entrance. Bomar credibly
testified that from among the disciplined 31, he could
recognize 16 named persons upon deliberate viewing, and
reviewing, of the TV films. (Resp. Exh. 8.) The composite
total of this testimony from Kubat, Wycoff, and Bomar
to It was stipulated that the handwntten words "Local 8412" were
written on the backs of some signs by the pickets. This identification
appeared as early as 7:30 a.m.
names, only with respect to persons not appearing as
witnesses, 18 different persons from the paragraph V
listing. Various ones of the 18 were also named in more
particularized testimony of who was seen proximate to the
picketing or in the coffeeshop to which other honorers and
officers of Local 8050 went. Those so named are J. Patrias,
Ron Cox, Ron Hunter, Al Rios, and R. A. Biggs. Outside
these 18, and referring only to persons not appearing as
witnesses, the names Tom Bock, T. McGary, Del Evans,
and R. Martinez remain. Bock was identified repeatedly as
present on the Champa Street sidewalk in the hour before
8:45 a.m., while Eyre testified without contradiction that
on July 25 Martinez admitted reaching the scene of
picketing at 9 a.m. on July 24 and choosing not to cross
without stated reason. This leaves McGary and Evans,
neither of whom was expressly named by any witness, but
both of whom were employed within Innes' group.1" I find
adequate basis to infer, and do so, that these two
individuals were both among the congregated Long Lines
employees and exposed in the same manner to the overt
happenings nearby. I make this inference because several
witnesses depicted a likelihood that any employee of the
Innes group not shown to have failed to report for any
reason other than the picketing was present in an ordinary
sensory mode. Communications Craftsman Terry Hill
testified credibly that he observed generally "the ones who
work together sort of [stuck] together that way." Commu-
nications Craftsman McKay, a fellow member of Local
8050, recalled that upon his arrival at Champa Street
between 7:30 and 8 a.m. the Long Lines employees were
"located mostly in two big groups [of] ten or twelve
individuals" each. [Emphasis supplied.] Eyre testified
credibly that a "larger" group was around the TV filming,
which he recognized as Innes' "specialists."
Communications Craftsman Ron Saager (a job steward
of Local 8050) arrived at the Champa Street entrance at
7:40 a.m., saw the picket line, and abided by his personal
inclination not to cross it because it was not reliably shown
to be invalid. Wycoff had arrived for work at 7:05 a.m.,
spoke first with pickets at the 931 14th Street entrance who
said they were "unhappy with the conditions," proceeded
around to observe "a few pickets" at the 930 15th Street
entrance, and continued to his regular work location
entering from Champa. There he watched "argumentative"
discussion between a picketer and someone from Mountain
Bell management, was quietly advised by Clark around 8
a.m. to go in to work, but spent more time inquiring of
pickets who told him the activity pertained to a pending
grievance. Eventually he crossed to go in work, influenced
by Clark's friendly guidance and the "supposed" attention
being accorded a grievance at issue. Hill arrived at the
Champa Street entrance around 7:15 a.m., spoke to an
apparent picket leader who stated working conditions were
being protested, and then joined a group of 15-18
coworkers of Denver 4A # I Machine group who were
"milling around" near the entrance about 7:25 a.m. He
opined to them the strike was illegal, and most joined him
in going in to work. After his arrival at Champa Street
" This is apparent from the configuration of stipulated disciplinary
interviews conducted on July 25 by Charles Whitehead and Wayne
Humiston, both first-line supervisors under Innes.
559
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKay spoke with two different pickets, learning from
them that their action was in protest of a particular
Mountain Bell supervisor and lack of progress on at least
one grievance. During this same timespan McKay was in
contact with Kubat, but was otherwise waiting on "what
was going to happen." He saw Eyre and Bomar, but denied
that either made any verbal characterization of the strike's
legitimacy. McKay harbored an understanding that such
activity during mid-term of the labor contract would be
unauthorized, recalled hearing a member of Mountain
Bell's management saying "it was an illegal line," but chose
not to cross as a personal matter. Communications
Craftsman Robert Norton arrived at the 931 14th Street
entrance at 7:15 a.m. and observed people standing around
that area with a few carrying signs. He spoke to certain
pickets, finding them "disturbed at both the company and
the union." About six other Long Lines employees were
also nearby at this time who were joined sporadically over
the next hour or more by Clark, Kubat, and Lewis. Norton
also recalled that Bomar approached at one point, saying
to the grouped Long Lines employees the strike was
"unsanctioned" and a specific "lock-out time" was fixed.
Before this time was reached either Kubat or Lewis told
their members present the strike was "probably unsanc-
tioned," and the matter of whether to cross was an
individual decision. Norton chose not to cross because to
him necessary determination had not been "officially"
reached. Communications Craftsman Gerald Domagala
arrived at the 931 14th Street entrance at 7:30 a.m., also
saw six pickets with signs, and approached Local 8050
officers for information. They were unsure and Domagala,
believing the unexpected, spontaneous nature of the
picketing signified its illegality, crossed to work.
In fact, a grievance challenging the expectancy that plant
reports clerks perform plant line assigner duties had been
filed by Fields on April 11. A step-one meeting was held
April 23, at which the grievance was denied with recorded
indication it was being carried to the second step by the
Union. Robert Thompson, Mountain Bell's assistant vice
president for personnel labor relations, testified without
contradiction that his general duties involved overseeing
grievance machinery of the contract, and this matter had
not reached the third step at which he is personally
involved.
This extensive background need be capped only by the
obvious; that a small band of Mountain Bell employees
sprung an unannounced demonstration on July 24 to vent
their dismay over Mountain Bell's not granting the
"assignment" grievance, coupled with apparent lack of
pursuit by Local 8412. In the course of their activity, the
pickets made no attempt to block ingress by anybody.
Adjudication here turns on whether "prior knowledge"
of the picket line's nature, meaningful in content and
universal (or near universal) among the sympathiz-
12 In writing that concerned N.L.R.B. v. Illinois Bell Telephone Company,
189 F.2d 124 (C.A. 7. 1951), denying enforcement of 88 NLRB 1171 (1950),
it was queried at the time whether the court's decision did not leave
unresolved a "troublesome situation .. . where the employer is under
contract with a majority representative, but the contract contains no
provision concerning the grievances of some minonty group in the
bargaining unit land I II If the minority cease work and/or set up a picket
line, not attempting to challenge the general status of the majority union or
er/honorers, is germane. General Counsel argues it is;
Respondent argues it is not, but alternately that even so it
was shown to have existed from total fact situation and, in
any event, employees were nevertheless vulnerable to
discipline because an effective waiver extinguished other-
wise applicable protection.
I first treat significance of contract language involved.
All parties concede that paragraph 5.6 of the Mountain
Bell/Local 8412 contract is a no-strike clause. The
picketers acted to protest lack of resolution over a specific
grievance originally filed by Fields himself on April 11. At
a step-one meeting 12 days later, the dispute was readily
identifiable as involving two employees within the plant
department and their division of time spent in plant reports
clerk duties and plant line assigner duties vis-a-vis extensive
contract language on the subject of "classification of
employees and changes in assignment." Minutes of that
meeting, attended by both Truelove and Fields, show the
grievance to have been denied with notice of the Union's
appeal to step two. It reposed at that level as of July 24.
Significantly, the time procedures of article 5 set forth one
in which to timely initiate a grievance and one of 7 days, or
any extension of time mutually agreed upon, for adjust-
ment at each step. Respondent did not claim, nor the
Union concede, that the grievance was withdrawn (or
abandoned), but neither had it advanced to step three. Its
status must be viewed as dormant at the time, a situation
not uncommon along the grievance pipeline of a major
bargaining relationship. For decisional purposes here, the
matter was clearly within the "any issue" wording of
paragraph 5.6 and improvidently dealt with by "means"
other than the grievance procedure itself. This removed
picketers from protection otherwise extended by the Act,
and discipline meted them went unchallenged.t 2 Signifi-
cantly, paragraph 5.6 bound "members" of the contracting
Union, a factor expressly termed the "critical phrase" for
determination in Kellogg Company, 189 NLRB 948 (1971)
(there a Sec. I 1101(a)); equally influential to the enforcing
court of appeals in Kellogg Conpany v. N.L R.B., 457 F.2d
519 (C.A. 6, 1972). Conversely the language of paragraph
17.10 reached by Long Lines/Local 8050 neither bound
members nor expressly negated other means of "[settling]
differences." It is doubtful the clause is intrinsically of no-
strike implication; but unarguably sympathy striking, a
matter of right conferred by law and as subject matter
utterly devoid in this contract, could not be "a difference
. . . regarding the true intent and meaning of a provision
[or] a question as to the performance of any obligation
hereunder." On this basis Respondent's reliance on
Teamsters v. Lucas Flour Co., 369 U.S. 95 (1962), is
misplaced; while W. L Mead Inc., 113 NLRB 1040 (1955),
is distinguishable.13 See instead Kellogg Company, supra;
Newspaper Production Company, 205 NLRB 738 (1973).
Waiver of Section 7 rights must be clear and unmistakable,
its contract, but simply to gain favorable attention to their grievance, may
the employer discharge or discipline employees who respect the picket line?"
Petro, "National Labor Policy and Respect for Picket Lines," 3 Labor Law
Journal 83 (1952).
13 The opinion in Lucas Flour, supra, at 106, states, "[W hat has been
said is not to suggest that a no-strike agreement is to be implied beyond the
area which it has been agreed will be exclusively covered by compulsory
terminal arbitration."
560
AMERICAN TELEPHONE & TELEGRAPH CO.
conjunctive characteristics absolutely lacking in the high-
lighted contract language. Mastro Plastics Corp. v.
N.LR.B., 350 U.S. 270 (1956); Gary-Hobart Water Corpo-
ration, 210 NLRB 742 (1974); Newspaper Production Co.,
supra. It follows, abstractly, that whatever rights obtained
for Long Lines employees engaging in sympathetic strike
action were unaffected by terms of their own collective-
bargaining agreement. Cf. Keller-Crescent Company, 217
NLRB 685 (1975).
If "prior knowledge" is germane, numerous questions
need resolution. These include whether reasonable belief of
Local 8050 officers was imputable to their members, with
or without reference to communication between the
groups, whether conduct of Long Lines management
affected the standing of employees, whether constructive or
actual knowledge of the nature of Mountain Bell picketing
made failure to appear for work unjustified, and whether in
any such event each honoring Long Lines employees was
chargeable with "prior knowledge" at a point in time
reasonably providing opportunity to respond before cutoff
from entering for the day. I believe Respondent is correct
on this basic legal issue, because essential circumstances of
the eventful morning are themselves an adequate basis for
decision. A contrary holding would contemplate that
employees be aware of labor-management matters collater-
al to their own employment, that each accurately fathom
the legalities of a jarringly unique situation come upon at
the verge of their workplace, that standardized behavior
values apply to each from the moment sensory receptors
flashed awareness of unconventionality to the moment
each consciously chose retreat, and that the coupled
mixture of management imperative and union equivoca-
tion elevate to notice of constructively sufficient advice
binding on all, and assimilable in a timespan here often as
short as I hour, that failure to work was tantamount to
aligning oneself with clearly unauthorized action. I decline
this assessment, one tending to appeal to those expert in
labor relations and sensitive to fluctuation in its rhythms.
While natural to such specialists, the same degree of
interest is not realistically chargeable to employees as a
general matter. Even where individual occupational skills
lend to typical job evaluation factors showing demonstra-
ble mental acuity, ability to comprehend technical and
nontechnical communication, and daily interfacing with
the functionally sophisticated workings of a major commu-
nications center, this is all subordinate to whether the
particular personal absorption of approaching employees
was on matters so wholly unrelated to work as to foster
genuine surprise, bemusement, irritation, and indecisive-
ness. The abruptness of this scene, its animation, the verbal
confrontations, the hampered leadership of recognizable
union officers are all starkly in contrast with circumstances
of Pacific Telephone and Telegraph Company, 107 NLRB
1547 (1954). There an adequate pattern of conduct had
emerged and a sufficient period of time passed for the
responsibility of evaluation to be assigned upon union
' A statutory rarity is found in the Occupational Safety and Health Act
of 1970 where each covered employee "shall comply with occupational
safety and health standards and all rules. regulations, and orders issued
pursuant to this chapter which are applicable to his own actions and
conduct." 29 U.S.C.A. § 654(b).
'r, Such as commission of assault. batter), theft. etc., in the employment
setting.
members; a mantle unwarranted by the peculiar, brief
episode here in which each person was essentially cast by
circumstances to best fend for himself.
There are embellishments to the employment relation-
ship as it relates to union representation, labor statute, and
applicable doctrine. The object of employment is work, not
a vortexed panoply of legalisms. Individual employees
must make many choices within Taft-Hartley purview: To
authorize union representation, to vote, to support decerti-
fication/deauthorization, to grieve without union represen-
tation under Section 9(a), to "ride freely" under open shop
provisions, to choose a course of conduct during en-
trenched primary strike picketing, etc. Each choice has
significance. It comes down to whether a doctrine of
worker accountability is implicit in law or otherwise
present in this case. Ordinarily, such is unknown.' 4 An
employee's duty to the employer is without dimension as to
time and otherwise affected only by ordinary societal
strictures.'5 As a contract terminable at will, no person
need toil a moment beyond their personal resolve;
sacrificing only, should they stop, entitlement to remunera-
tion as continued moments of time would unite into
measurable hours, days, weeks, or months of labor. But no
sanction would impinge-no obligation to rectify lost
expenditure in terms of emergency operational coverage of
employer-incurred costs of ability grooming.
In this context there must be a line drawn. The first
amendment right of expression is so broad, if not
completely untrammeled, that persons could in jest,
through mischief, intermeddling, or with "stranger" causes
infest the proximal access to a work place in such manner
physically resembling labor picketing. Farcical results must
not arise. It could not be intended that caricature equal
convention; that, for example, appearance of a coached
young child be tantamount to a work-age adult (albeit
solitary) engaging in the basic activity of picketing.
Thus, the case presents an unsuitable basis to consider
extending the Pacific Telephone rationale and indeed must
be decided on other grounds according to seemingly
uniform view of the law. The Long Lines employees were
not themselves on strike, because no dispute existed
between them (or Local 8050 on their behalf) and AT&T.
Patently all had work as their destination on July 24, and
were persuaded only by what was at least a demonstration
having at least some indicia of a labor dispute. The
honorers acted purely in sympathy with Mountain Bell
activists, a course of conduct basically imbued with
concertedness and indirectly purposeful of one's own
interest in maintaining benefits of occasional collective
action designed to improve terms and conditions of
employment. See Canada Dry Corporation, 154 NLRB 1763
(1965). Since derivative in nature, the rights of such actors
are deemed to be those, and only those, with whom they
sympathize.16 The principle is frequently treated as arising
by implication from N. L R.B. v. Southern Greyhound Lines,
426 F.2d 1299 (C.A. 5, 1970), enfg. 169 NLRB 627 (1968).
"I Although General Counsel did not senriously contend that union
membership motivated Respondent here, nor was there evidence that
Respondent had immediate practical knowledge of particular employee's
union membership at the point discipline was determined. this combination
of factors makes it unnecessary to weigh business justification underlying
(Continued)
561
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is also true the yet-unmodified decision in Pacific
Telephone states, "Because they joined in the unprotected
strike of the traffic employees . . . the tollmen also
removed themselves from the protection of the Act." The
doctrine of sympathy strikers "standing in the same shoes"
as primary strikers was expressly articulated before Pacific
Telephone and has been frequently adhered to thereafter.
Cinch Manufacturing Corporation, 91 NLRB 371 (1950)
("same protection"); Cyril de Cordova & Bro., 91 NLRB
1121 (1950) ("except where the means used ... are
otherwise illegal or improper"); N. LR.B. v. Louisville Chair
Company, 385 F.2d 922 (C.A. 6, 1967) ("same statutory
protection"); Newspaper Production Company v. N.L.R.B.,
503 F.2d 821 (C.A. 5, 1974) ("same protection afforded the
workers with whom they [sympathy strikers] sympathize").
Plainly the underlying Mountain Bell strike was unprotect-
ed in this context; those who chose to compound its effect
did so without protection of law.17 This applies with equal
force to Running Bear and Martinez, both of whom arrived
at a later time, but whose reaction differed not in principle
from the main group of 29. In reaching this conclusion I
find it unnecessary to treat several points briefed by
Respondent, including any claimed duty of Local 8050 to
effectively inform its members of the strike's character, the
efficacy of steps by Long Lines management to convince
Local 8050 that an unprotected strike was underway, the
clear visibility of Local 8412 officials as they circulated
about in overt effort to guide their own members in to
work, and application of the Union's constitution and
the cutoff hour and operational adjustments thereafter. Cf. N.LR.B. v.
Great Dane Trailers, Inc., 388 U.S. 26 (1967). Additionally, the claimed
"lock-out" occurring July 24 is illusory as an issue of the case, since it was
purely the failure of Long Lines employees to report that necessitated their
replacement for the day.
17 Literature on the subject assumes through a variety of' esoteric
phrasing that honorers of a picket line at their own employer's premises act
consonantly with those with whom they sympathize. Thus:
The legislative history of the Wagner Act indicates that Congress
intended that Act to protect the worker who refused to cross a primary
picket line legitimately erected at his place of employment. [Emphasis
suppliedl Carney and Florsheim, Refusals to Cross Picket Lines, 55
Cornell L. Rev. 940 (1969-70).
We are referring, however las a fundamental principle of trade
unionism ], only to peaceful picket lines legitimately established which
proclaim a labor dispute between employer and employees over wages,
hours and working conditions. [Emphasis supplied.] Thatcher and
Finley. Respect for Picket Lines, 32 Neb. L. Rev. 25 (1952-53).
[A n employee's principled refusal to cross a laaful picket line will be
held to be protected activity under § 7. [Emphasis supplied.] Connolly
and Connolly. Employers' Rights Relative to Sympathy Strikes, 14
Duq. L. Rev. 121 (1975-76).
It has been established [citing the Fifth Circuit Decision in Southern
Greyhoundl that an employee who refuses to cross a lawful [emphasis
supplied ] picket line at his own employer's premises and remains totally
bylaws to this situation with particular reference to
members' duty to cross unauthorized picket lines. How-
ever, a significant factual contradiction is present from the
testimony, which I resolve in the interests of thoroughness.
Bomar claims, and Kubat denies, that around 8 a.m. the
latter verbally conceded the picketing to be unauthorized.
Both witnesses are forthright and convincing, however, on
this particular point I discredit Bomar in the belief that he
erroneously construed remarks made under difficult
circumstances. Kubat's denial is persuasively consistent
with his overall course of action at that time.
Respondent injected a Freedom of Information Act issue
by prehearing demand for contents of General Counsel's
investigative file. I reject this contention as appropriate
authority holds such material to be privileged and, further,
I am bound to follow Board policy in this regard which is
to resist such disclosure under the exemption provided by 5
U.S.C. § 552(bX7)(A). Title Guarantee Co. v. N.L.R.B., 534
F.2d 484 (C.A. 2, 1976); Climax Molybdenum Co. v.
N.LR.B., 539 F.2d 63 (C.A. 10, 1976); Maremont Corpora-
tion v. N.LRB., 93 LRRM 2799 (C.A. 10, 1976).
Accordingly, I render a conclusion of law that Respon-
dent has not violated the Act as alleged and issue the
following recommended:
ORDER 18
The complaint is dismissed in its entirety.
out of work is to be treated as a striker, even if he is not a member of
the picketing union or part of the bargaining unit involved." Picket
Line Observance: The Board and the Balance of Interests, 79 Yale L. J.
1369 (1969-70).
In commenting on Pacific Telephone Company, 107 NLRB 1547 (1954), a
legal note characterized the holding as one where "the Board went further
and stated that an employee who refuses to cross a picket line that is
unprotected by the act loses the protection of section 7, whether or not he had
knowledge that the line was unprotected." [Emphasis supplied.] Respect for
Picket Lines, 42 Ind. L. J. 536 (1966-67). See also, Connolly, Section 7 and
Sympathy Strikes: The Respective Rights of Employers and Employees, 25
Lab. L. J. 760 (1974); Haggard, Picket Line Obserbance as a Protected
Concerted Activity, 53 N. C. L. Rev. 43 (1974-75).
A pragmatically succinct summarization of the entire notion involved is
found in O'Connor, Respecting Picket Lines: A Union View, Seventh
Annual N.Y.U. Conference on Labor, 235 at 274 (1954):
Finally, although there are some difficulties with it, it is best for a
person respecting a picket line to have his status determined by the
character of the picket line he respects.
18 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
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.
562