Communications Workers Local 11509 (A T & T)

National Labor Relations Board - Board Decisions

May 12, 1987

283 N.L.R.B. 957 (N.L.R.B. 1987)

COMMUNICATIONS WORKERS LOCAL 11509 (A T & T) 957
Communications Workers of America , Local 11509,
AFL-CIO (A T & T Information 'Services) and
Sharon M. Jones. Case 21-CB-9693
12 May 1987
DECISION AND ORDER
BY MEMBERS JOHANSEN, STEPHENS, AND'
-CRACRAFr
On 12 February 1987 , Administrative Law Judge
Joan Wieder issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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, and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Communica-
tions Workers of America, Local 11509, AFL-
CIO, San Diego, California, its officers, agents, and
representatives, shall take the action set forth in the
Order.
I We deny the General Counsel's motion to strike the Union's excep-
tions to the judge's decision on the grounds that they failed to comport
with the form required in Sec 102 46 (b) of the Board's Rules and Regu-
lations.
Theodore R. Scott, Esq., for the General Counsel.
Donald A. Hon, Esq., for the Respondent.
DECISION
STATEMENT OF THE CASE
JOA19 WIEDER, Administrative Law Judge. This case
was tried in San Diego, California, on 21 November
1986.1 This proceeding commenced with a charge filed
by Sharon M. Jones, an individual, on 21 August. A
complaint was issued on 16 September alleging that
Communications Workers of America, Local 11509- (Re-
spondent or the Union) has violated Section 8(b)(1)(A) of
the National Labor Relations Act by notifying Jones that
she had been charged with violating, the Union's internal
rules by working during a strike; and she would be sub-
sequently informed of the trial date on these charges.
The Union admits the Employer, A T & T Information
Services (Employer or AT&T) meets one or more of the
Board's jurisdictional standards and I so find. The Union
acknowledges that it is a labor organization within the
meaning of Section 2(5) of the Act. Respondent admits
I All dates are in 1986 unless otherwise indicated.
notifying Jones as alleged in the complaint but denies it
violated Section 8(b)(1)(A) of the Act.
The parties appeared by counsel and were afforded
full opportunity to adduce evidence, examine and cross-
examine witnesses , argue, and file briefs. Briefs were
timely, filed and were considered in my review of the
record. After consideration of the record and the de-
meanor of the witnesses,, I find, for the reasons stated
below, that the Union did violate Section 8(b)(1)(A) of
the Act.
Facts
The facts are primarily undisputed. Jones had sporadic
employment with AT&T. As here pertinent, she was
hired as a temporary employee about April 1979. At that
time she executed a dues-checkoff form after being told
it was a condition of employment.2 After a short layoff,
Jones returned to work about 5 March 1980 and, as here
pertinent, continues as an AT&T employee. She execut-
ed another dues-checkoff form when she was rehired on
5 March 1980 under a similar understanding it was a
condition of employment. Jones never executed a mem-
bership application, took an oath of membership or gave
any other indicia of membership in -Respondent or any
other Union.3 The mere tendering of dues does not make
an employee a member of the Union and Respondent
does not so argue . Respondent admits in its brief that
Jones was not a member.
In June the Union engaged in a strike against, AT&T.
Jones worked during the strike. Two union members,
Jennifer M. Miller and Ann Naughton, observed Jones
crossing the picket line and independently filed charges
against 'her with the Union. Respondent, on 1 l August,
processed, these charges and sent Jones the following
letter:
You have been charged with violating the Union
Constitution, Article XIX, Section l
d. Disobeying or willfully failing to comply with
any lawful decision or order of the Union or Local.
e. Working without proper Union authorization,
during the period of a properly approved strike
(AT&T, June 1, 1986 through June 26, 1986) in 'or
for an establishment which is being struck by the
Union or Local.
You will be notified of your trial date and time at
a later date.
2 There was no evidence adduced why dues checkoff was a condition
of employment but the General Counsel indicated on the record, without
refutation, that the condition arose from a union-security clause in the op-
erative collective-bargaining agreement
a The Respondent, argued on brief that Jones cast a ballot in a certified
union election in March 1982. This is a bare assertion not raised at hear-
ing or the subject of any probative evidence On the contrary, Jones testi-
fied, without dispute or refutation, that she never attended any union
meeting or voted in any union sponsored election. Based on demeanor
and the unrefuted testimony of Jones, I find that she did not do anything
to indicate union membership The Union failed to adduce any evidence
that it considered Jones a member or had any basis for such a conclusion.
Jones did use the union dental insurance program but under conditions
obtaining for nonmembers that were described as less favorable than
those available to members.
283 NLRB No. 146
958 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
You have the right to select a member of the
Local as counsel, the right to produce and cross ex-
amine witnesses , present documentary evidence and
to be heard on your own behalf. If you have any
questions you may contact this office.
The letter was signed by Robert B. Sarsfield, the Re-
spondent's secretary-treasurer.
The day after she received the letter Jones called the
Union and was referred to Carol Stegall, whom the par-
ties stipulated held the office of executive vice president
with the Union. Jones informed Stegall that she was not
a union member and requested she be sent any docu-
ments she executed reflecting- she was a member. Stegall
refused saying it was not necessary because "I was re-
ceiving CWA literature, as a matter of fact, made me a
member." About 21 August, Jones again telephoned Ste-
gall and they had a similar conversation and Stegall told
Jones to -"wait for my summons and appear in [Union]
court." Neither Stegall or any other representative of
Respondent appeared and testified. Jones' testimony is
totally unrefuted, and this factor, cojoined with her
forthright demeanor, leads me to credit Jones' testimony.
Jones did not receive any further communications
from Respondent. Stegall informed both Miller and
Naughton that the Union dismissed the charges against
Jones. The date(s) of these communications is not a
matter of record. The Union did write a letter to the
Board's Regional Office informing a field examiner that
the Union would drop the charges against Jones. The
letter was dated 13 November, about a week before the
trial herein. Jones was informed by the Region at some
unspecified' date. When Jones learned of the Union's rep-
resentation to the Region is not a matter of record. The
record clearly indicates that Respondent has never in-
formed Jones that the charges have''been dropped and all
union records on the matter expunged from its files.
There was no testimony from any of Respondent's repre-
sentatives or any, documentation that the Union did in
fact take such action and/or expunged the charges from
its files.
Section 8(b)(1)(A) of the Act has been consistently
found to provide that it is an unfair labor practice for a
labor organization to "restrain or coerce employees in
the exercise of rights guaranteed in Section 7 of the
Act." Included in 'these Section 7 rights is the right to
refrain from engaging in protected concerted activities,
including, strikes. Machinists (Boeing Co.), 185 NLRB
380, 381 (1970); Communications Workers Local 1170
(Rochester Telephone), 194 NLRB 872 (1972).
The Supreme Court in Scofield v. NLRB, 394 U.S. 423
(1969), listed the requirements for the lawful imposition
of union discipline under the Act as follows:
Section 8(b)(1)(A) leaves a union free to enforce a
properly adopted rule which reflects a legitimate
union interest, impairs no policy which Congress
has imbedded in the labor laws, and is reasonably
enforced against union members who are free to
leave the union and escape the rule.
Respondent argues that the matter is moot and the
Board is estopped from pursuing Jones' charge for the
Board has previously dropped charges against the Union
when similar -union processes had been initiated then
"summarily dropped, upon a showing of nonmembership
in the Union." Patterson v. Stage Employees IATSE, 323
F.2d 368 (10th Cir. 1963), and Lanigan v. Electrical
Workers IBEW Local, 327 F.2d 627 (7th Cir. 1964). The
cited cases are- found inapplicable to this proceeding for
they involved actions where no remedy could be afford-
ed at the time the proceedings were before the courts. In
this case, the Board can require that the Union cease and
desist from such actions and post a notice informing em-
ployees that their public rights are protected. Also, the
cited cases do not involve the Respondent's practice of
sending charges to nonmembers. No proceedings involv-
ing charging nonmembers for working during a strike
were cited by Respondent. The Respondent's actions are
clearly beyond the ambit described by the court in its
Scofield decision, supra. Cf. Textile Workers UTWA Local
1029, Granite State Joint Board v. AFL-CIO, 409 U.S.
213, 217 (1972); Machinists Local 1414 (Neufeld Porsche-
Audi), 270 NLRB 1330 (1984). That the Union's charges
did not mention a fine is not an exculpating factor. As
the General Counsel notes in her brief, the Board's deci-
sion in Oil Workers Local 6-578 (Gordy's Inc.), 238
NLRB 1227, 1231 (1978), enfd. 619 F.2d 708 (8th Cir.
1980), found:
Threatening to file charges constitutes "restraint"
and "coercion" within the meaning of Section
8(b)(l) without requiring a showing that the notice
of the potential penalty was explicitly brought to
the attention of the charged employee. Communica-
tions Workers of America, AFL-CIO (Rochester Tele-
phone Corp.), 194 NLRB 872, 873 (1972) (written
charges filed against a nonmember).
The Board also held in the Gordy's decision,; id.,
.. fines are implicit when disciplinary proceed-
ings are initiated or threatened without an express
limitation as' to the range of sanctions available; this
is most obviously true, in the case of a resigned
member who ipso facto cannot be expelled.
This same logic applies to nonmembers who also cannot
resign to escape any discipline nor be expelled in lieu of
monetary penalties.
Respondent's assertion of estoppel is without any sup-
port in the record. The Board has not been shown to
have waived its obligations under the Act previously- or
acted in any manner that would have estopped it from
investigating Jones' charge and issuing a complaint based
thereon. Respondent's argument that the Board- is es-
topped is found to be without merit. To adopt their ar-
gument would inappropriately relieve the Union of its
recordkeeping_ obligations, and the Board would be its
surrogate in determining that employees are members. In
this case, the representation of nonmembership by the
employee the day after being informed charges had been
filed against her and she would be subjected to a trial,did
not even stir the Union to commence an investigation.
Instead'; the aggrieved person was informed that she
would be subjected to a trial before the union would
even consider her representation of nonmembership. To
COMMUNICATIONS -WORKERS LOCAL 11509 (A T & T}
adopt Respondent's arguments would eviscerate the Act,
and leave the Union free to continue -to coerce and in-
timidate nonmember employees. I find ' that the Respond-
ent's letter in this case was a coercive and restraining
missive.
The Respondent also argues that it dropped the
charges at some unspecified time, rendering this proceed-
ing moot . Its action was never related to Jones, the one
person restrained and coerced by the charges. As the
Board held in Gordy's, id.:
Faced with the possibility of action against him,
the employee may well be, for practical purposes,
impelled to forego his statutory, right not to honor
the unions' picket line rather thanrisk involvement
in a lawsuit whose outcome he cannot predict.
The Union's action could coerce Jones and other non-
members who learn of the event, or are similarly treated
into foregoing their statutory right to cross a picket line
and work in the future.
Other factors mitigate in favor of finding a violation in
this case. For example, Jones was not notified the
charges were dropped, notice was only given to the Re-
gional Director. The Respondent did not admit that it
violated the Act. On the contrary, its defense indicates
that it has an established practice of charging employees
who cross picket lines without regard to their status as
nonmembers and awaits some outside parties' interven-
tion to prove that the employees were not properly the
subject of internal union disciplinary measures. Thus,
there was an erroneous understanding that its actions did
not violate the Act. The Respondent dWnot promise to
refrain from similar coercion in the future. Rather, its ar-
gument indicates that it intends to continue the practice
of relying on the,Board or others to inform it if the em-
ployees it charges are nonmembers.. Finally, there was no
evidence adduced by Respondent that indicates the
charges have in fact been dropped and its records ex-
punged.
Considering the circumstances of this case, I find that
the unfair labor practice is not de minimis . An important
Section 7 right has been infringed, the right of a non-
union member to refrain from engaging in protected con-
certed activity in violation of Section 8(b)(1)(A) ' of the
Act.
CONCLUSION OF LAW
By processing internal union charges against Sharon
M. Jones, who is not and never was a union member, for
failing to honor a Union picket line and working during
a strike, the Union restrained and coerced an employee
in the exercise of the rights guaranteed by Section 7 of
the Act, in violation of Section 8(b)(1)(A) of the Act.
REMEDY
Having found that the Union engaged in unfair labor
practices within the meaning of Section 0)(1)(A) of the
Act, I recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed
to effectuate the policies of the Act: The General Coun-
sel seeks the imposition of a visitatorial clause but has
959
not shown that it is warranted in the circumstances of
this case; therefore, the request is'denied.
The Respondent will be required to post a remedial
notice to employees and members because the object of
Respondent's unfair labor practice was a nonmember, a
notice to members would fail, to provide- the needed reas-
surance and information to nonmembers that they can
exercise their Section 7 rights. Steelworkers (Newport
News Shipbuilding), 239 NLRB 82 (1978).
On these findings of fact and conclusions of law and
on, the entire record, I issue the following recommend-
ed4
ORDER
The Respondent, Communications Workers of Amer-
ica, Local 11509, AFL-CIO, San Deigo, California, its
officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing Sharon M. Jones, or any
other employee who is not a member of the Union, in
the exercise of rights guaranteed them by Section 7 of
the Act, by processing charges against them because
they exercised their right to cross a picket line and re-
frained from engaging in a work stoppage called by the
Union.
(b) In any like or related manner restraining or coerc-
ing 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) Expunge from its records any references to the
filing of internal union charges against Sharon M. Jones.
(b) Dismiss any pending charges against Sharon M.
Jones.
(c) Notify Sharon M. Jones, in writing, that it has
taken these actions.
(d) Post at its San Diego, California facilities copies of
the attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 21, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken ,by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(e) Deliver to the Regional Director for Region 21
signed copies of the Appendix for posting by AT&T In-
formation Services, the Company willing, at its San
Diego, California facility, in places where notices to em-
ployees are customarily posted.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
5 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
960 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(f) Notify the Regional Director in writing within 20
days from the date ' of this Order what steps the Re-
spondent 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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain or coerce Sharon M. Jones or
any other employee who is not a member of the Com-
munications Workers of America, Local 11509, AFL-
CIO, in the exercise of the rights guaranteed them by
Section 7 of the Act, by processing union charges against
them because they, exercised their right to cross a picket
line,and refused to honor -a work stoppage called- by the
Union.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL expunge from our records all references to
the filing of internal union charges against Sharon M.
Jones.
WE WILL dismiss any such internal union charges
pending against Sharon M. Jones.
WE WILL notify Sharon-M. Jones, in writing, that we
have taken the ordered- actions.
COMMUNICATIONS WORKERS OF AMERICA
LOCAL 11509, AFL-CIO