Communications Workers Of America, 11500, Afl-Cio (American Telephone & Telegraph Co.)

National Labor Relations Board - Board Decisions

Oct 19, 1984

272 N.L.R.B. 850 (N.L.R.B. 1984)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communications Workers of America, Local 11500,
AFL-CIO (American Telephone & Telegraph
Company) and Ins W DiMercuno Case 21-
CA-8773
19 October 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 17 July 1984 Administrative Law Judge
Richard J Boyce issued the attached decision The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings findings 1 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, Commumca
tons Workers of America, Local 11500, AFL-
CIO, Norwalk, California, its officers, agents, and
representatives shall take the action set forth in the
Order
' The Respondent has excepted to some of the judge s credibility find
lags The Board s established policy is not to overrule an administrative
law judge s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard 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
DECISION
STATEMENT OF THE CASE
RICHARD J BOYCE Administrative Law Judge This
matter was tried in San Diego California on May 31
1984 The charge was filed March 24 1984 by Iris W
DiMercuno (DiMercurio) The complaint issued April
18 and alleges that Communications Workers of Amer
Ica Local 11500 AFL-CIO (Respondent) violated Sec
tion 8(b)(1)(A) of the National labor Relations Act (Act)
on February 21 1984 by imposing a fine against DiMer
curio for working behind a picket line after she had re
signed from membership in Respondent
I JURISDICTION
The involved employer is Amencan Telephone &
Telegraph Company (AT&T) It is undisputed that
AT&T is an employer engaged in and affecting com
merce within Section 2(2) (6) and (7) of the Act
II LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED MISCONDUCT
A Evidence
DiMercuno a telephone operator at AT&T s facility
at 5690 Balboa Arms Drive in San Diego is in a bargain
ing unit of employees represented by Respondent
On August 7 1983 Respondent called a strike of unit
employees in aid of its position in the negotiation of a
new contract with AT&T The stnke lasted until August
27 DiMercuno joined in the strike at its inception even
walking the picket line On August 11 or 12 however
she returned to her job which entailed crossing and
working behind the picket line
On October 17 DiMercuno received this notice from
Respondent
You Ins W DiMercuno were observed crossing a
picket line at 5690 Balboa Arms Drive in the City
of San Diego in the County of San Diego in the
State of California on August 12 13 15 thru 17 19
21 thru 23 26 1983 You are charged with violating
Article XIX Section 1 of the CWA Constitution
which reads as follows
Members may be fined suspended or expelled
by Locals in the manner provided in the Consti
tution for any of the following Acts
(E) Working without proper Union authonza
tion during the period of a properly approved
strike in or for an establishment which is being
struck by the Union or Local
The charge was properly filed with the Recording
Officer of the Local at an Executive Board meeting
held on October 04 1983 at the Local office
You will be notified of the date and location of
your trial
That was followed by notice from Respondent to Di
Mercurio mailed January 20 1984 that her trial would
be held at noon February 21 in Respondent s office at
4990 Williams Avenue in the San Diego suburb of La
Mesa
DiMercuno did not appear for the trial nor did she
otherwise answer to the charge On February 21 Re
spondent mailed this notice to her
It is the decision of the Trial Court that you are
guilty of the charges brought against you
The Trial Court therefore has determined the fol
lowing penalty
You shall be suspended from membership in the
Union until not applicable
You shall be fined in the amount of all wages
earned from August 7 through August 27 1983
plus $100 00 penalty and for any strike benefits re
ceived
272 NLRB No 130
COMMUNICATIONS WORKERS LOCAL 11500 (AMERICAN TELEPHONE) 851
Wages $ 2,617 75
Penalty 100.00
Strike Benefits -0-
Total $ 2,717.75
The amount shown as wages is an estimated
amount. If the amount is different than your actual
earnings you may send a copy of your check stubs
to the Constitution and By-Laws Enforcement
Committee at the Local so an adjustment can be
made.
You have the right to appeal the verdict of the
Trial Court to the Executive Board of the Local
within thirty (30) days of this letter. The Appeal
must be made by you and be submitted in writing to
Frances Valencia, Secretary-Treasurer of the Local
DiMercurio did not appeal the verdict and, to the trial
herein, had not paid the fine
DiMercurio testified that the preceding July 29—i e.,
about a week before the strike began—she mailed this
letter to Respondent at the 4990 Williams Avenue ad-
dress:
To Whom It May Concern:
I, Iris W. DiMercurio, do on this 29th day of
July, 1983, here and now resign from the C.W.A.
Union and Local #11500.
Please bring this to the attention of said Local
President Marge Terflinger.
/s/ Iris W. DiMercurio
The letter was sent by ordinary mail, according to Di-
Mercurio, during the course of an evening of shopping
with two AT&T coworkers, Mildred Miller and Roberta
Rostiker Miller and Rostiker corroborated DiMercurio
that they were with her that evening, and that she
mailed a letter Neither purported to know what the
letter concerned, however, or to whom it was sent 1
Lois (Marty) Church, in charge of Respondent's office
at 4990 Williams Avenue, testified that she opened all
mail coming to the office until the strike started, and that
she never saw the letter assertedly sent by DiMercuno
on July 29, nor a copy of it, before the present tnal.2
On August 21, by all accounts, DiMercurio sent this
letter, by certified mail, to Respondent.
Attn: Margi Tefflinger [sic]
To whom it may concern:
Having been misinformed by a Union representa-
tive as to the proper procedure to resign from this
Union local, prior to the strike, I was unable to
tender my resignation before the said strike
Now with the proper information at hand I for-
mally resign from the Union, local 11500
' DiMercurio, in her testimony, did not profess to have disclosed these
details to Miller and Rostiker
2 A copy of the letter, supplied by DiMercurio, is in evidence The
office, Church testified, is open Mondays and Fridays only (except
during the strike) Mail coming other days is delivered through a slot in
the door, lying on the floor until the next succeeding Friday or Monday
/s/ Ins W. DiMercurio
DiMercurio testified that a number of letters identical
to this had been handwritten by someone other than Di-
Mercurio, "so that anybody in the office that wanted to
resign could resign"; and that she affixed her signature to
one and had a friend mail it. She testified that she sub-
mitted a second letter because she had been told, since
mailing her July 29 letter, that resignation letters had to
be sent by certified mail to be valid, and because she had
received no acknowledgement from Respondent of the
earlier one.
It is undisputed that, had Respondent received the
letter assertedly sent on July 29, DiMercuno's resigna-
tion would have been valid as of that time
B. Conclusions
Facts. It is found that DiMercuno in fact did mail the
letter purportedly sent July 29. Her testimonial demeanor
was particularly impressive. Moreover, while a literal
reading of her August 21 letter would belie the prior
submission of a resignation, her testimony about the cir-
cumstances surrounding that letter was at once plausible
and convincing, effectively disposing of the seeming con-
tradiction. And, that DiMercuno chose to participate in
the strike for a few days before returning to work is not
inherently at odds with a prior resignation
It is further found, applying the legal presumption that
attends the placement of a missive with the United States
Postal Service, that the July 29 letter was received by
Respondent in the ordinary course of mail—which is to
say, well before DiMercuno first crossed the picket line
nearly 2 weeks later. 3 Church's testimony that she never
saw the letter, or a copy of it, before the trial lacked
conviction, and thus did not overcome the presumption.
Law. DiMercurio's July 29 letter having been received
by Respondent before she engaged in the conduct for
which she was fined, it being conceded that the letter
was sufficient to effect resignation if received, Respond-
ent perforce violated Section 8(b)(1)(A) as alleged. Ma-
chinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB
1330 (1984)
CONCLUSION OF LAW
By imposing a fine against Ins W. DiMercuno on Feb-
ruary 21, 1984, for returning to work during a strike,
after she had resigned from membership in Respondent,
Respondent violated Section 8(b)(1)(A) of the Act.
On these findings of fact and conclusion of law, I issue
the following recommended4
3 A letter correctly addressed and properly mailed is presumed to have
been received in the ordinary course of mail Cal Evidence Code Sec
641 (West 1968) See also Mark I Tune-Up Centers, 256 NLRB 898, 909
(1981), Hendricks-Miller Typographic Go, 240 NLRB 1082, 1088 (1979),
Thiele Tanning Go, 128 NLRB 19, 20 fn 3 (1960)
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
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Respondent Communications Workers of Amer
ica Local 11500 AFL-CIO its officers agents and rep
resentatives shall
1 Cease and desist from
(a) Restraining or coercing employees in their exercise
of rights under Section 7 of the Act by imposing fines
against them for working for a struck employer after
they have resigned from membership in Respondent
(b) In any like or related manner restraining or coerc
mg employees in the exercise of the rights guaranteed
them by Section 7 of the Act
2 Take this affirmative action to effectuate the policies
of the Act
(a) Rescind the fine imposed against Iris W DiMer
curio on February 21 1984 because of her postresigna
lion work for AT&T during the strike that began on
August 7 1983 refund to her any moneys she may have
paid as a result of such fine with interest 5 and expunge
from its records any and all references to said fine and to
the charges underlying it notifying DiMercurio in writ
ing that this has been done
(b) Post at its business office and meeting halls copies
of the attached notice marked Appendix 6 Copies of
the notice on forms provided by the Regional Director
for Region 21 after being signed by Respondent s au
thonzed representative shall be posted by Respondent
immediately upon receipt and maintained for 60 consecu
live days in conspicuous places including all places
where notices to members are customarily posted Rea
sonable steps shall be taken by Respondent to ensure that
5 Interest shall be computed in accordance with Florida Steel Corp
231 NLRB 651 (1977)
6 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
the notices are not altered defaced or covered by any
other material
(c) Sign and return to the Regional Director sufficient
copies of the notice for posting by American Telephone
& Telegraph Company if willing at all places where no
tices to employees in the affected bargaining unit cus
tomanly are posted
(d) Notify the Regional Director in wnting within 20
days from the date of this Order what steps Respondent
has taken to comply
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees in their
exercise of rights guaranteed by Section 7 of the Act by
imposing fines against them for working for a struck em
ployer after they have resigned from membership in our
Union
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them by Section 7 of the Act
WE WILL rescind the fine imposed against Iris W Di
Mercurio on February 21 1984 because of her postresig
nation work for AT&T during the strike that began on
August 7 1984 WE WILL refund to her any moneys she
may have paid as a result of such fine with interest and
WE WILL expunge from our records any and all refer
ences to said fine and to the charges underlying it noti
fying DiMercuno in writing that this has been done
COMMUNICATIONS WORKERS OF AMERICA
LOCAL 11500 AFL-CIO