Bell Atlantic Corp.

National Labor Relations Board - Board Decisions

Dec 29, 2000

332 N.L.R.B. 1592 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1592
Bell Atlantic Corporation and its wholly-owned sub-
sidiary, New England Telephone and Telegraph
Company, and Telesector Resources Group, a
Wholly-Owned Subsidiary of New England
Telephone and Telegraph Company and New
York Telephone Company and International
Brotherhood of Electrical Workers, Systems
Council T-6, AFL–CIO. Case 1–CA–37462
December 29, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN
AND HURTGEN
On August 17, 2000, Administrative Law Judge Jerry
M. Hermele issued the attached decision. The Respon-
dent filed exceptions and a supporting brief. The Gen-
eral Counsel filed exceptions and a brief in support of
exceptions and in support of portions of the judge’s deci-
sion. The Charging Party filed cross-exceptions, a sup-
porting brief, and an answering brief to the Respondent’s
exceptions. The Respondent filed an answering brief to
the General Counsel’s exceptions.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions,
and to adopt the recommended Order as modified and set
forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Bell Atlantic Corporation and its wholly-
owned subsidiary, New England Telephone and Tele-
graph Company, and Telesector Resources Group, a
wholly-owned subsidiary of New England Telephone
and Telegraph Company and New York Telephone
Company, Boston, Massachusetts, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain with the International Brother-
hood of Electrical Workers, Systems Council T-6, AFL–
CIO by unilaterally implementing a surcharge for the
garnishment of employees’ wages without first providing
the Union with notice and an opportunity to bargain
about this subject on behalf of the employees the Union
represents in an appropriate bargaining unit described in
the current collective-bargaining agreement between the
Respondent and the Union.

1 The parties have excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stan-
dard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis
for reversing the findings.
2 We shall modify the recommended Order to accord with the tradi-
tional Board format and to include specific cease-and-desist provisions
for the Respondent’s unlawful conduct.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request by the Union, rescind the unlawfully
implemented surcharges imposed on employees’ gar-
nished wages, and make all employees whole for all
amounts withheld as surcharges for garnished wages
since the surcharges were unlawfully implemented in
July 1999.
(b) On request by the Union, bargain in good faith with
the Union over the proposed surcharges on employees’
garnished wages.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Within 14 days after service by the Region, post at
its facilities throughout Maine, New Hampshire, Massa-
chusetts, Rhode Island, and Vermont, copies of the at-
tached notice marked “Appendix.”3 Copies of the notice,
on forms provided by the Regional Director for Region
1, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-
ployed by the Respondent at any time since June 22,
1999.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
3 If this Order is enforced by a judgment of a United States Court of
Appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
332 NLRB No. 168
BELL ATLANTIC CORP. 1593
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT refuse to bargain with the Interna-
tional Brotherhood of Electrical Workers, Systems
Council, T-6, AFL–CIO by unilaterally implementing a
surcharge for the garnishment of employees’ wages
without first providing the Union with notice and an op-
portunity to bargain about this subject on behalf of our
employees whom the Union represents in an appropriate
bargaining unit described in the current collective-
bargaining unit between us and the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL, upon request by the Union, rescind the
surcharges imposed on employees’ garnished wages, and
make all employees whole for all amounts withheld as
surcharges for garnished wages since July 1999.
WE WILL, upon request by the Union, bargain in
good faith with the Union over the proposed surcharges
on employees’ garnished wages.

Linda M. Crovella, Esq., for the General Counsel.
Michael Hertzberg, Esq., New York, New York, for the Re-
spondent.
Wendy M. Bittner, Esq., Boston, Massachusetts, for the Charg-
ing Party.
DECISION
I. INTRODUCTION
JERRY M. HERMELE, Administrative Law Judge. In July
1999, the Respondent, Bell Atlantic Corporation and its
wholly-owned subsidiary, New England Telephone and Tele-
graph Company, and Telesector Resources Group, a wholly-
owned subsidiary of New England Telephone and Telegraph
Company and New York Telephone Company (the Company),1
started charging its employees for child support and other credi-
tor obligations garnished from their weekly paychecks. The
Union, the International Brotherhood of Electrical Workers,
Systems Council T-6, AFL–CIO, filed a charge on July 28,
1999, alleging that the Respondent never bargained with it over
this matter. And on November 30, 1999, the General Counsel
issued a complaint alleging that the Respondent had violated
Section 8(a)(1) and (5), and Section 8(d), of the National Labor
Relations Act. The Company denied this allegation in a De-
cember 16, 1999 answer.
This case was tried on June 5, 2000, in Boston, Massachu-
setts, during which the General Counsel presented one witness
and the Respondent presented two witnesses. Then on July 7,
2000, the General Counsel and the Union filed briefs, followed
by the Respondent’s brief on July 10.
II. FINDINGS OF FACT
Before 1997, telephone company Bell Atlantic covered Vir-
ginia, West Virginia, Washington, D.C., Maryland, Delaware,
Pennsylvania, and New Jersey, while telephone company
NYNEX serviced New York, Rhode Island, Massachusetts,
Vermont, New Hampshire, and Maine. After their merger in
August 1997, the surviving company, Bell Atlantic, derived
annual gross revenues over $100,000, and purchased and re-
ceived interstate goods at its Boston facility exceeding $5000 a
year. Also following the merger, the payroll operations of the
two companies began a process of consolidation (GC Exh.
1(C), (I); Tr. 85–88).
Before 1990, Maine, New Hampshire, Vermont, Massachu-
setts, and Rhode Island enacted statutes allowing employers to
charge an employee for amounts garnished from an employee's
paycheck for court-awarded child support. The original Bell
Atlantic company had instituted this surcharge against employ-
ees' paychecks in New Jersey, Maryland, Virginia, and Wash-
ington, D.C. (GC Exh. 5; Tr. 83–87). In 1998, the Union and
the Respondent reached a new 2-year collective-bargaining
agreement covering employees in the five New England States,
effective August 9, 1998. Nothing about surcharges or gar-
nishments is addressed in the contract and there were no dis-
cussions beforehand about either subject (G.C. Exh. 2; Tr. 15–
17, 33).
After the 1997 merger, the Company decided to impose sur-
charges on the New England employees whose weekly pay-
checks were being garnished for child support (Tr. 34, 87). To
that end, Edward Simmons, a Bell Atlantic supervisor in New
York, wrote a December 14, 1998 letter to Myles Calvey, the
Union's business manager in Boston (G.C. Exh. 1(C), (I); Tr.
13). The letter read:

In an effort to standardize regional Payroll operations
within the Bell Atlantic footprint, the Company will begin
to assess, during the first Quarter 1999, an employer
fee/surcharge for garnishments associated with Court Or-

1 At trial, the parties stipulated that this mouthful was the proper
name of the Respondent (Tr. 55). After trial, the Respondent appar-
ently changed its name to a Bell-less “Verizon Communications, Inc.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1594
ders i.e. Child Support and Creditor Executions, as al-
lowed by current State laws.
Implementation of this charge will result in an addi-
tional collection/remittance of $1.00 to $5.00 per pay pe-
riod or transaction depending upon the State in which the
employee works.
This fee applies to each active Court Order and will
remain in effect for the duration of the Order.
Please be assured that proper notification will be for-
warded to each of the employees affected by this initiative
prior to implementation.
Attached, for your benefit, is the applicable State rate
schedule, as well as the breakdown of employees currently
impacted in each State.
If you have any questions regarding the above, please
feel free to contact me. I can be reached on (212) 221–
2884.

State Fees/Surcharge # of Employees
Affected

Maine $2.00 per transaction 19
Massachusetts $1.00 per transaction 434
New Hampshire $1.00 per payment 32
Rhode Island $2.00 per payment 26
Vermont $5.00 per month 23

(GC Exh. 3). According to Simmons, Calvey never responded
to the letter, although Calvey talked with him about another
matter in February 1999 (Tr. 57-59). Calvey, however, testified
that he called Simmons, with whom he regularly dealt, to com-
plain about this surcharge in light of the recently concluded
collective-bargaining agreement's failure to address it at all.
According to Calvey, Simmons said he was merely Bell Atlan-
tic's messenger, and that Calvey should direct his protest to Jim
Dowdall (Tr. 19-20, 43). So, Calvey talked to Dowdall before
the latter's retirement in early 1999 (Tr. 39).
6. The Company did not implement the surcharge in early
1999, as Simmons indicated in his December 14, 1998 letter
(Tr. 20-21). Tyler Williams assumed Simmons' job in the
Company in early 1999 and, in a February 1999 meeting in
Boston with Calvey, Calvey complained about Simmons' De-
cember 1998 letter. Williams said he would look into the sur-
charge matter (Tr. 21–22, 75–76). In another Boston meeting,
on February 25, 1999, Calvey spoke with Tom O’Gara, Bell
Atlantic's Director of Labor Relations in New York, but did not
raise the surcharge issue because he thought it had “disap-
peared,” inasmuch as the Company had still not implemented it
(Tr. 23, 40–42, 95–100).
On April 12, 1999, Simmons wrote another letter regarding
the surcharge to Calvey, in order to wrap up old issues from his
previous job. Simmons told O'Gara that he would be sending a
letter about the surcharge (Tr. 75, 134–135). It read:

As per my last correspondence dated December 14,
1998, The Company will begin to implement, effective
May 1, 1999, an employer fee/surcharge for garnishments
associated with Court Orders i.e. Child Support and Credi-
tor Executions, as allowed by current State laws.
This surcharge will result in an additional collec-
tion/remittance of $1.00 to $5.00 per pay period or trans-
action depending upon the State in which the employee
works. This fee applies to each active Court Order and
will remain in effect for the duration of the Order.
Attached again, for your benefit, is the applicable State
rate schedule, as well as the breakdown of employees cur-
rently impacted in each State.
If you have any questions regarding the above, please
feel free to contact me. I can be reached on (212) 221–
2884.

(GC Exh. 4). Instead of calling Simmons, Calvey called
O’Gara but was unsuccessful in getting through to him. Spe-
cifically, Calvey placed between 10 and 15 calls and was able
to leave just two messages on O’Gara's telephone because the
capacity was otherwise full. For the two messages, Calvey
merely said that he wanted to speak with O’Gara, but did not
say about what (Tr. 24, 37–38, 100–101).
The surcharge was not implemented on May 1 either (Tr.
25). Instead, on June 9, 1999, the Company sent the following
letter to its employees:

Effective in July, Payroll Services will begin assessing
an employer surcharge, as allowed by law in the state in
which you work, per each court award-child support de-
duction made and remitted on your behalf.
If paid weekly: the surcharge will be effective with
your paycheck dated 7/15/99.
If paid monthly: the surcharge will be effective with
your paycheck dated 7/30/99.
Below is the rate schedule and applicable state law
which allows for this surcharge. For your information,
similar surcharges have already been in effect in other Bell
Atlantic companies.

Court Awards-Child Support
Work State Fee Schedule

District of Colombia $2.00 per pay period deduction
Maine $2.00 per pay period deduction
Maryland $2.00 per pay period deduction
Massachusetts $1.00 per pay period deduction
New Hampshire $1.00 per pay period deduction
New Jersey $1.00 per pay period deduction
Rhode Island $1.00 per pay period deduction
Virginia $5.00 per pay period deduction
Vermont $5.00 per month; if paid weekly
(GC Exh. 5). Calvey received this letter from an employee,
whereupon Calvey called Company official Dick Lamontagne
in Boston. But Lamontagne said he knew nothing about it (Tr.
26–28).
On June 22, 1999, in Boston, the Advisory Committee on
Health Care held a meeting. This committee was comprised of
BELL ATLANTIC CORP. 1595
union and management representatives and its purpose was to
address health care issues (R. Exh. 1). Calvey and O’Gara both
attended. Calvey told O'Gara that the proposed surcharge was
“outrageous,” unacceptable to the Union, and had to be bar-
gained over. O'Gara responded that the surcharge issue was not
an appropriate topic for the health care committee meeting. But
O'Gara referred Calvey to various state laws which permitted
the surcharge and told Calvey he would send those statutes to
him later (Tr. 28–31, 47, 109, 137–139). Calvey never asked to
schedule a meeting to bargain about the surcharge (Tr. 110).
Nor did Calvey write a letter requesting bargaining (Tr. 42).
But after the Company implemented the surcharge, Calvey filed
an unfair labor practice charge with the National Labor Rela-
tions Board on July 28, 1999 (G.C. Exh. 1(A); Tr. 8, 32).
III. ANALYSIS
The General Counsel’s theory of this case is two variations
on the same theme: the Respondent violated Section 8(a)(1) and
(5) by failing to negotiate with the Union before implementing
the garnishment surcharge; and violated Section 8(d) by indi-
rectly reducing employees’ wages with the unilateral imple-
mentation of this surcharge, thus modifying the existing collec-
tive-bargaining agreement. In the presiding judge's view, the
Respondent has the better legal argument regarding Section
8(d). Specifically, the 1998–2000 collective-bargaining agree-
ment was absolutely silent on the subject of employer-imposed
garnishment surcharges. Thus, to accept the General Counsel’s
theory, virtually any unilateral change in a term or condition of
employment before the expiration of a collective-bargaining
agreement that indirectly affects wages would constitute a vio-
lation of Section 8(d); a liberal interpretation never adopted by
the Board or the courts. See Milwaukee Spring Division, 268
NLRB 601, 602 (1984), affd. 765 F.2d 175 (D.C. Cir. 1985).
Moreover, this separate 8(d) allegation is redundant in view of
the 8(a)(1) and (5) allegation. Accordingly, this part of the
complaint will be dismissed.
But the presiding judge concludes that the General Counsel
has proven a violation of Section 8(a)(1) and (5), which re-
quires an employer to “bargain collectively with the representa-
tives of his employees” regarding the wages, hours and other
terms and conditions of employment. In this regard, an em-
ployer may not unilaterally change any of these terms and con-
ditions when a union represents the employees. NLRB v. Katz,
369 U.S. 736 (1962). Thus, an employer may propose a change
to a union, whereupon a union has the right to bargain with the
employer, provided a union acts with due diligence in request-
ing bargaining. Medicenter, Mid-South Hospital, 221 NLRB
670, 678–679 (1975).
Here, the conduct of the Respondent and the Union was
equally ambiguous from late 1998 to mid-1999. Specifically,
the Union’s Business Manager, Myles Calvey, received a letter
in December 1998 from Bell Atlantic Supervisor Edward Sim-
mons that “the Company will begin to assess, during the first
quarter 1999, an employer fee/surcharge for garnishments. . . .”
Despite the unequivocal wording of the letter, the Company’s
proposal was not a fait accompli, relieving the Union of its duty
to request bargaining. See Haddon Craftsmen, 300 NLRB 789
(1990). But according to Calvey, he merely complained to
Simmons about the proposal, rather than requesting bargaining.
Thus, Calvey's mere protest was ambiguous—neither constitut-
ing a clear waiver of the Union's right to bargain or a clear
request to bargain. See Clarkwood Corp., 233 NLRB 1172
(1977). Calvey’s February 1999 protest to Simmons' successor,
Tyler Williams, was equally ambiguous. Likewise, Calvey's
early June 1999 conversation with supervisor Dick Lamontagne
was inconclusive, inasmuch as Lamontagne knew nothing
about the surcharge. And the Company’s conduct regarding the
surcharge was also ambiguous. The Company stated in De-
cember 1998 that the surcharge would be implemented in early
1999, but it never was. And in April 1999, the Company said
the surcharge would be implemented on May 1, 1999. But this
never happened either.
Finally on June 9, 1999, the Company informed its employ-
ees that the surcharge would be effective in July, and this time
it was. But on June 22, 1999, before the surcharge implementa-
tion, Calvey met with yet another Bell Atlantic supervisor, Tom
O’Gara, complained about the “outrageous” surcharge, and,
finally, orally requested bargaining over the subject. O’Gara's
lame response was to inform Calvey that the laws of five New
England States permitted the surcharge, rather than accepting
the bargaining request. And the Respondent’s lamer legal ar-
gument is that the June 22 meeting was an inappropriate venue
at which to request bargaining because the surcharge issue was
not on the agenda. But there is no requirement that the bargain-
ing request be made at a place and time of the employer's
choosing. Moreover, Calvey was not legally required, as the
Respondent contends, to request yet another meeting to bar-
gain. In sum, the Union adequately asserted its right to bargain
with the Respondent on June 22, 1999, and the Respondent
violated Section 8(a)(1) and (5) by ignoring the request and
unilaterally implementing the garnishment surcharge in July
1999. Compare Haddon Craftsmen, supra (Union waived its
right to bargain by requesting bargaining after a change was
implemented). Accordingly, the Respondent will be required to
rescind the garnishment surcharge, make all affected employees
whole, bargain about the surcharge, and post a remedial notice.
IV. CONCLUSIONS OF LAW
1. The Respondent, Bell Atlantic Corporation and its wholly-
owned subsidiary, New England Telephone and Telegraph
Company, and Telesector Resources Group, a wholly-owned
subsidiary of New England Telephone and Telegraph Company
and New York Telephone Company, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. The Union, International Brotherhood of Electrical Work-
ers, Systems Council T-6, AFL–CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. As alleged in paragraphs 10, 11, 12, 13, 16, and 17 of the
General Counsel’s complaint, the Respondent has violated
Section 8(a)(1) and (5) of the Act by refusing since June 22,
1999 to bargain with the Union over the surcharge imposed on
employees’ garnished wages and by implementing the sur-
charge without bargaining about it.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1596
4. The General Counsel has failed to prove its allegations at
paragraphs 14, 15, and 18, that the Respondent violated Section
8(d), and Section 8(a)(1) and (5), of the Act.
5. The unfair labor practice of the Respondent, described in
paragraph 3, above, affects commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]