Communications Workers Local 6012 (Southwestern Bell)

National Labor Relations Board - Board Decisions

Aug 26, 1985

275 N.L.R.B. 1499 (N.L.R.B. 1985)

COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL)
Communications Workers of America, AFL-CIO,
Local 6012 (Southwestern Bell Telephone Co.)
and Stephen L. Andrew.. Cases 16-CB-2390-4,
16-CB-2390-9, and 16-CB-2390-10
26 August 1985
DECISION AND ORDER
BY' CHAIRMAN DOTSON AND MEMBERS •.
HUNTER AND DENNIS
On 21 February 1985 Administrative Law Judge
Steven M. Charno issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
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
as modified.
The judge concluded that the Respondent violat-
ed Section 8(b)(1)(A) of the Act by preventing
members Elsie Luann Fitzgerald, Christina Thomp-
son, and, Connie White from resigning their union
memberships and by imposing fines on them for re-
turning to work during a strike.' We find no merit
in the Respondent's exceptions to these findings.
As found by the judge, the -Respondent filed legal
proceedings in an Oklahoma district court to col-
lect the fines levied against the three individuals
mentioned above. The General Counsel contends
that the judge erred in failing to conclude, as al-
leged, that by filing and prosecuting such state
court actions the Respondent violated Section
8(b)(1)(A) of the Act..We'agree.
In Bill Johnson's Restaurants v. NLRB, 461 U.S.
731 (1983), the Supreme Court held that the Board
may not enjoin a well-founded lawsuit regardless
of a plaintiffs alleged retaliatory motivation. The
Court observed; however, that its holding did not
apply, to "a: suit that has an objective that is illegal
under federal law," noting specifically, thatit had
previously "upheld' Board orders enjoining unions
from prosecuting court suits for enforcement of
fines that could not lawfully be imposed under the
Act."2
Consistent with Bill Johnson's Restaurants and
longstanding Board law, we found recently in'Ma-
chinists Local 1769 (Dorsey Trailers), 271 NLRB 911
(1984), that the filing of court actions to collect un-
' Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984)
2 461 U S at 737-738 fn 5, citing. inter aha, Granite State Joint Board,
Textile Workers Union, 187 NLRB 636, 637 (1970), enf denied 446 F 2d
369 (Ist Cir 1971), revd 409 U S 213 (1972)
1499
lawfully imposed fines is an independent violation
of Section 8(b)(1)(A) of the Act. Accordingly, we
conclude that ._ by commencing and prosecuting
state court claims to collect, the fines unlawfully
levied against Fitzgerald, Thompson, and White,
the Respondent violated Section 8(b)(1)(A) of the
Act, and we shall order that the Respondent cease
and desist from engaging in such conduct.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Communications Workers of America,
AFL-CIO, Local 6012, Tulsa, Oklahoma, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order as modified.
1. Insert the following as paragraph 1(d) and re-
letter the subsequent paragraph. -
"(d) Restraining or coercing employees by filing
and prosecuting court actions to collect fines .im-
posed on any member who returns to work during
a strike after resigning 'as a member or after being
prevented from resigning by the Respondent."
2. Substitute the attached notice for that of the
administrative law judge. -
APPENDIX
NOTICE To MEMBERS
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 ordered us to post and abide by this notice.
WE WILL NOT inform you that you cannot resign
your membership in Communications Workers of
America, AFL-CIO, Local 6012 during a strike or
at any other time.
WE WILL NOT refuse to accept your oral or writ-
ten resignation during a strike or at'any other time.
WE WILL NOT charge you with violations of our
constitution, subject you to intraunion trials, or
impose or threaten to impose,fines on you because
you return to work during a strike after you resign
your membership or after we prevent you from
doing so. • .
WE WILL NOT'file and prosecute court actions to
collect fines imposed on you because you return to
work during a strike after you resign your'member-
ship or after we prevent you from doing so.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
275 NLRB No. 210
1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
guaranteed you by Section 7 of the National Labor
Relations Act.
WE WILL rescind the charges and fines imposed
against Elsie Luann Fitzgerald, Christina -Thomp-
son Burroughs, and Connie White, and WE WILL
refund to them any money 'they may have paid as a
result of such fines, with interest.
WE WILL expunge' all records of the charges
brought against the above-named employees and all
records of any actions taken as a result of such
charges, and WE WILL inform those employees in
writing that such-records have been expunged. -
COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO, LOCAL 6012 -
DECISION
STEVEN M.' CHARNO, Administrative Law Judge In
response to charges timely filed, a complaint was issued
on. August 24, 1984, alleging that Communications
Workers of America, AFL-CIO, Local 6012 (Respond-
ent) . had violated Section 8(b)(1)(A) of the National
Labor Relations Act, by fining Elsie Luann Fitzgerald,
Christina-.Thompson, r and Connie White for refusing to
honor a picket line after they had unsuccessfully attempt-
ed to resign from Respondent. Respondent's answer
denies the commission of any unfair labor practice.
A hearing was held before me in Tulsa, Oklahoma, on
October 22 and 23; 1984 2 Briefs were thereafter filed by
the General Counsel, the Charging Party, and Respond-
ent under extended due date of December 28, 1984.
FINDINGS OF FACT
1. JURISDICTION
Southwestern Bell Telephone Company (Bell) is a
Missouri corporation which provides telecommunication
services to the general public within Oklahoma During
the 12 months preceding issuance - of the complaint, Bell,
in the course and conduct of its business operations
within Oklahoma , purchased and received goods and
services valued in excess of $50,000 from points outside
the State and had annual gross revenues in excess of
$100,000 . It is admitted , and I find , that Bell is an em-
ployer engaged in commerce within the meaning of the
Act
Respondent is admitted to be, and I find is, a_ labor or-
ganization within the meaning of the Act. -
i After the charge-relating to her was filed but before the hearing,
Thompson was married and took the name Burroughs For the sake of
consistency with the record and briefs, she is referred to by her maiden
name throughout the "Findings of Fact "
2 After the hearing opened, a settlement was reached with respect to
four additional alleged discriminatees, and the allegations of the com-
plaint concerning them were dismissed
II: THE-ALLEGED UNFAIR LABOR PRACTICE
A Background
Respondent conducted a strike against Bell from 12.01
a.m. on August 7 until 1.30 a.m. on August 28, 1983.3 By
letter of September 19, Respondent President Harold
Roe notified the 37 employees who returned to work
during that strike, including Fitzgerald, Thompson, and
White, that charges had been filed'against•them and that
trials relating to those charges would be held at Re-
spondent's hall on October 11.
When, the scheduled trials took place, at least 'one of
Respondent's members, Cathy Ford, attempted to defend
herself by establishing that she had resigned as a member
of Respondent It was stipulated that neither the consti-
tution of the International nor Respondent's bylaws con-
tain any reference to resigning from the Union. During
Ford's trial, Roe interpreted this fact to mean "there is
no way to resign from the Union The only way you can
be a non-member, a dues equivalent, is at the,time you
sign up that you do not pay your $2.00 initiation fee."
Somewhat inconsistently, Roe explained during Ford's
trial that he had received instructions at the time of the
strike from the "National Union" to charge any member
who worked during the strike without having canceled
his or her dues-deduction authorization at least 2 weeks
before the expiration of the collective-bargaining agree-
inent• with, Bell. Thus, notwithstanding the fact that Re-
spondent admittedly received' Ford's written resignation
on August 12, -Roe stated at her trial. "I still maintain
that she was a member-at the time this strike started, and
there is no legal way to get out of the Union. . After
these proceedings are over, then that is something else."4
At the conclusion of the trials, fines were assessed by
Respondent at the rate of $80 for each day' an employee
had worked during the strike. None of these fines took
into account the fact that an employee had resigned or
attempted to resign from Respondent at the commence-
ment of or during the strike.5 By letters of October 13,
the employees were notified of the fines assessed against
them. Appeal proceedings were held on November 17.
On April 13, 1984, Respondent filed collection actions in
a All dates hereinafter are 1983 unless otherwise indicated
" These findings are based on a tape recording of the October I I trials
During the hearing, Roe testified that (1) it was not his position during
the trials that members could not resign from Respondent during- the
strike, (2) it was his explicit and stated position at the trials that Ford had
submitted an effective resignation, (3) he did not receive instructions
from the International which prevented Respondent from recognizing
member resignations during the strike, and (4) if anyone wanted to resign
from Respondent, "all they had to do was notify us " During his testimo-
ny, Roe admitted that Respondent at one time had a policy which pre-
vented member resignations "any time around the strike period." but he
later flatly denied the existence of such a policy Because Roe's testimony .
before me was internally inconsistent and uniformly-self-serving, and be- .
cause he showed himself to-be blatantly mendacious, I have not credited
him on any disputed evidentiary point - -
After unfair labor practice charges.were filed aginst Respondent, it
adjusted some of the fines to take into account some, but not all, of the
written resignations it received from members before or during the strike
According to Roe, these adjustments were made "because the National
Labor Relations Board told me they had to be" Accordingly, I reject
Respondent's argument on brief that its adjustment of fines demonstrated
a policy on its part to allow. members to resign during the strike
COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL)
an Oklahoma district court aginst all of the individuals
who had been fined, including Fitzgerald, Thompson,
and White '
B. Events Concerning Fitzgerald
Fitzgerald was employed by Bell in the same depart-
ment as Shirley Rape, a steward and admitted agent of
Respondent. Fitzgerald, who was emotionally agitated
about, the . impending. strike, had a conversation with
Rape on August 5. Fitzgerald stated that she did not
wish to go on,strike and that she wanted to resign from
Respondent. Rape attempted to dissuade her and stated
that Fitzgerald could not resign without being terminat-
ed by Bells
Fitzgerald returned to work on August 15, did not
attend her trial 'on October 13, and had no further con-
tact with Respondent until she was notified that she had
been fined $1200 for returning to work during the strike
The suit filed by Respondent in April 1984 sought to col-
lect a $640 fine from Fitzgerald.
C. Events Concerning Thompson
Thompson was opposed to the strike On August 5,
she looked up the telephone number for Respondent's
hall When she called that number, the telephone was an-
swered by an unidentified individual with the words
"union hall." Thompson asked if she could resign from
Respondent and was told no 7 It is uncontested that the
individuals authorized to answer the telephone at Re-
spondent's hall are instructed to provide any information
sought by callers or, if'the answerer is unable to do so,
to refer the caller to someone who can provide the infor-
mation.8
After reading a provision of the collective-bargaining
agreement between Respondent and' Bell concerning the
cancellation of dues-deduction authorizations, Thompson
sent an August 5 letter to Bell's payroll office stating,
"effective immediately, I no longer wish to participate as
a CWA member". and requesting that her authorization
be canceled.9 On August 9, Thompson received a tele-
phone inquiry concerning her "letter from 'an unnamed
male in Bell's payroll' office. She reiterated her desire to
resign from Respondent, and Bell sent her letter to the
offices of the Communications Workers of America in
St. Louis, Missouri, which received the letter on or
6 Fitzgerald so testified , while Rape denied that the conversation had
taken place While it was uncontested that Fitzgerald and Rape worked
in close physical proximity, Rape maintained at the outset of her testimo-
ny that she "did "not associate" and had never discussed union business
with Fitzgerald Subsequently, however. Rape indicated familiarity with
details of Fitzgerald's personal life and admitted the existence of at least
one con'versation'concermng union business Given Roe's tape-recorded
articulation of Respondent ' s position concerning member `resignations
during the` strike, the conversation described by Fitzgerald appears more
probable than does Rape's general denial For the foregoing reasons-and
based on my observation of the demeanor of both witnesses while testify-
ing. I credit Fitzgerald over Rape ' ' '
r Thompson's testimony to this effect was unrebutted
8 Roe so testified-
9 It is uncontested that this portion of the collective-bargaining agree-
ment is the only written reference to the process of severing the relation-
ship between Respondent and its members Indeed , Roe seemed to state
in one variant of his'testimony that cancellation of the authorization was
the only way in which a member could resign from Respondent
1501
before August 15 and forwarded it to Respondent The
resignation was received by Respondent on August 17
Thompson returned to work on' August 8 and worked
throughout the strike She did not attend her trial and
was assessed a fine of $1200 The suit filed by Respond-
ent in April of 1984 sought to collect the full amount of
the assessed fine to
D Events Concerning White
White also opposed the strike. During the evening of
August 5, she 'placed a telephone call to Respondent's
hall, which was answered by an unidentified female with
the phrase "CWA."11 White stated she could not honor
a strike and wanted to resign from Respondent. When
she inquired as to the appropriate procedure for doing
so, she was informed that there was nothing she could
do to resign. White asked if she needed to talk with Roe
and was told it was unnecessary Finally, White asked if
Respondent needed any information from her and was
told no
On August 7, Respondent Steward Wanda Centers
called White about the Tatter's picket duty. White stated
that she could not honor the strike, she'needed to work,
and she wanted to resign from Respondent. Centers
asked, • "Do you know you can be fined for this," and,
White responded yes. White returned to work at Bell on
August 8 On approximately August 10, Respondent Sec-
retary-Treasurer Faye Hodge called White about the Tat-
ter's return to work. White reiterated her decision not to
go on-strike and described her August 5 telephone call.
Hodge did not respond to these comments. After having
friends suggest that she "get something' in writing,"
White - sent a letter of resignation to Respondent on
August 12.12 It was received by Respondent on August
15. - -
White did not attend her trial and was notified by Re-
spondent's October 13 letter that she had been fined
$1200. The suit filed aginst her by Respondent in April
of 1984 sought to collect a $480 fine.
E. Discussion
Recently, the Board held that a union may not unlaw-
fully restrict the right of its members to resign. Machin-
ists Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330
(1984) Fines imposed by a union on its members after
they tender resignations" of their memberships and return
to work during a strike are therefore violative of Section
8(b)(1)(A) of the Act. Glass & Pottery WorkersLocal 185
(Liberty Glass), 273 NLRB 198 (1984)
In this case, the.General Counsel argues that'Respond-
ent refused to accept the resignations of Fitzgerald,
10 Respondent's assertion on brief that Thompson's fine was adjusted
to take in account Respondent's receipt of her written resignation is with-
out record support
i l Roe testified that the hall was'empty when he left about 5 p in on
August 5 and that "no one" was there to answer the telephone after his
departure Rape, however, testified that there were "quite a few people"
at the hall when she arrived on the evening of August 5 and that the
telephone "rang off the wall " For the reasons set forth in fn 3, supra. I
do not credit Roe • " '
12 The foregoing findings are based on White's unrebutted testimony
1502 - DECISIONS OF' NATIONAL LABOR RELATIONS BOARD
Thompson, and White and subsequently imposed fines on
them for failing to honor a picket line. Respondent
denies that it refused to accept any resignations tendered
by its members. Fitzgerald, Thompson, and White con-
tacted individuals connected with Respondent in ' order
to resign from the Union; all three were told that they
could not resign from Respondent In order to determine _
whether Respondent should be held responsible for pre-
venting its members from resigning, it is necessary to ex-
amine the relationship between Respondent and the indi-
viduals contacted by Fitzgerald, Thompson, and White.
Respondent -Steward Rape, who was contacted by
Fitzgerald, was admitted to be Respondent's agent
within the meaning of Section 2(13) of the Act, and the
substance of that admission is mandated by relevant case
law. See, e.g., Painters Local 1310 (Reliance Electrical),
270 NLRB 506 (1984). The individuals contacted by
Thompson and White each answered a telephone call to
Respondent's listed telephone number by indicating that
the caller had reached Respondent's hall and each then
went on to give an impression of competence to conduct
union business. I therefore find that the telephone an-
swerers were cloaked with apparent authority to respond
to questions concerning resignation from the Union and
that they were, therefore, Respondent's agents for that
purpose. See Plasters Local 90 (Southern Illinois Builders),
236 NLRB 329, 331 (1978). Cf. Teamsters Local 70
(Lucky Stores), 226 NLRB 205, 209-210 (1976); Carpen-
ters District Council (Hensel Phelps Construction), 222
NLRB 551, 553 fn. 2 (1976). In addition, Roe's state-
ments prohibiting member resignations may be held to
constitute ratification of the prohibitions previously ar-
ticulated by Rape and the telephone answers. See Electri-
cal Workers IBEW Local 3 (L.M. Ericsson Telecommuni-
cations), 257 NLRB 1358, 1369 (1981).
In the absence. of any prescribed resignation proce-
dure, the statements of Respondent's agents prohibiting
member resignations effectively prevented Respondent's
members from tendering resignations. There can be no
meaningful distinction under the facts of this case be-
tween preventing the tender of a resignation and refusing
to accept it. Accordingly, I find that Respondent pre-
vented Fitzgerald, Thompson, and White from resigning
their union memberships and that it subsequently im-
posed fines on them for returning to work, during a
strike. I further find both actions to be violative of Sec-
tion 8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW.
1. Bell is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 By preventing its members from resigning and by
subsequently imposing fines on those members for re-
turning to work during a strike, Respondent engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Because Respondent engaged in unfair labor practices
in violation of Section 8(b)(1)(A)-of the Act, it shall be
ordered to cease and desist therefrom and to take certain
affirmative action designed to effectuate the purposes of
the Act, including refunding to Fitzgerald, Thompson,
and White any moneys they may have paid as a result of
the fines imposed against them, with interest computed in
the manner prescribed in Florida Steel Corp., 231' NLRB
651 (1977).13 Because Respondent's prohibition of
member resignations was widely disseminated and there
are indications in the record that few of its members
have occasion to visit its headquarters, it does not appear
likely that the posting of a notice at Respondent's hall
can effectively dissipate the coercive effect of its con-
duct. For that reason, Respondent shall be required to
mail a copy of the attached appendix to all the individ-
uals on its membership rolls, including but not limited to
individuals who were members at the time the unfair
labor practices found herein were committed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed14
ORDER
The Respondent, Communications Workers of Amer-
ica, AFL-CIO, Local 6012, Tulsa, Oklahoma, its offi-
cers, agents, and representatives, shall -
1. Cease and desist from
(a) Informing its members that they cannot resign their
memberships in it.
(b) Refusing to accept oral or written resignations ten-
dered by its members.
(c) Charging any member with a violation of its con-
stitution, subjecting any member to intraunion trial or
imposing or threatening to impose a fine on any member
who returns to work during a strike after resigning as a
member or after being prevented from resigning by Re-
spondent
(d) In any like or related manner restraining or coerc-
ing its members in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purposes of the Act.
(a) Rescind the charges and fines imposed against Elsie
Luann Fitzgerald, Christina Thompson Burroughs, and
Connie White and refund to them any moneys they may
have paid as a result of such fines in the manner set forth
in the section of this decision entitled "Remedy."
(b) Expunge all records of the charges brought against
the employees named in subparagraph (a) and all records
of any actions taken as a result of such charges, and
inform the employees in writing that such records have
been expunged.
13 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
14 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
COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL)
(c) Post at - all places - where notices to -members and
employees are posted copies of the attached notice
marked "Appendix."' 5 Copies of the notice, on forms
provided by the Regional Director for Region 16, after
being signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
" "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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order,of the Nation.
al Labor Relations Board
,
r
1503
conspicuous places including all places where notices to
members are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure, that the notices
are not altered, defaced, or covered by any other materi-
al.
(d) Mail a copy of the attached notice marked "Ap-
pendix" to each of its members, including but not limited
to all individuals who were members at the time the
unfair labor practices found herein were committed.
(e) Notify the Regional Director in writing within 20
days from the date this Order what steps Respondent has
taken to comply