CWA, Local 9511

National Labor Relations Board - Board Decisions

Feb 8, 1971

188 N.L.R.B. 433 (N.L.R.B. 1971)

CWA, LOCAL 9511 433
Communications Workers of America , Local 9511 (Pa-
cific Telephone and Telegraph Company) and Son-
dra J. White
Communications Workers of America, Local 9510 (Pa-
cific Telephone and Telegraph Company) and James
K. Smith . Cases 21-CB-3488 and 21-CB-3491.
February 8, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN AND
JENKINS
Board, granting permission and time for filing of
briefs. Thereafter, General Counsel, Charging Parties,
and Respondents filed briefs with the Board
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member pan-
el.
Upon the basis of the facts stipulated to the Board,
the exhibits, the briefs, and the entire record in these
cases, the Board makes the following:
FINDINGS OF FACT
Upon a charge duly filed on October 28, 1969, and
a charge filed on October 30, 1969,' the General
Counsel of the National Labor Relations Board, by
the Regional Director for Region 21, issued an Order
Consolidating Cases, Consolidated Complaint, and
Notice of Hearing, dated January 13, 1970, and
amended on January 14, 1970, against Respondents.
The complaint alleged that Respondents had engaged
in and were engaging in unfair labor practices within
the meaning of Section 8(b)(1)(A) and Section 2(6)
and (7) of the National Labor Relations Act, as
amended, by threatening to sue certain employees of
Pacific Telephone and Telegraph Company, and by
the institution of legal action to collect arbitrary and
excessive fines previously levied against Sondra J.
White, William E. White, Ralph F. Walton, members
at all times material herein of Respondent Local 9511,
and Neva G. Oakden, a member at all times material
herein of Respondent Local 9510, for their failure to
engage in concerted activities. Respondents filed an
answer , dated January 21, 1970, to the consolidated
complaint denying the commission of any unfair la-
bor practices and affirmatively pleading that the con-
solidated complaint failed to state a cause of action
and that the charges were not timely filed.
On March 25, 1970, Respondents, Charging Par-
ties , and counsel for the General Counsel filed with
the Board in Washington, D.C., a motion to transfer
proceedings to the Board. The motion stated that the
parties agreed that the stipulation of facts, and the
exhibits appended thereto, should constitute the en-
tire record; that the parties waived their right to a
hearing before a Trial Examiner and the issuance of
a Trial Examiner's Decision; and that these cases be
submitted directly to the Board for findings of fact,
conclusions of law, and the issuance of a Decision and
Order.
On March 26, 1970, the Board approved the parties'
motion and ordered the cases transferred to the
' The Charging Party in Case 21-CB-3491 is the attorney for alleged
discnmmatee Neva G Oakden
1. JURISDICTION
Pacific Telephone and Telegraph Company, herein
called Pacific Telephone, a California corporation, is
• an interstate public utility engaged in transmitting
and receiving intrastate and interstate communica-
tions and providing communication services, with
facilities and places of business in, among others, Es-
condido, Oceanside, and Balboa, California. Pacific
Telephone, in the course and conduct of its business,
annually purchases and receives at its facilities within
the State of California goods, materials, and supplies
originating outside the State of California valued at a
substantial amount. It annually receives, in the course
and conduct of its business, gross revenues in excess
of $250,000 of which in excess of $50,000 is received
from the transmission of interstate telephone commu-
nications.
Accordingly, we find that Pacific Telephone is, and
at all times material herein has been, an employer
engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7)
of the Act, and that it will effectuate the purposes of
the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATIONS INVOLVED
Respondent Communications Workers of America,
Local 9511 and Respondent Communications Work-
ers of America, Local 9510, each is now and at all
times material herein has been, a labor organization
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Facts
The stipulation of facts indicates that commencing
in March 1968, the Bell Systems operating companies,
one of which is Pacific Telephone, the Western Elec-
tric Company, Inc., and the various communication
unions, including Communications Workers of
188 NLRB No. 63
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, hereinafter CWA, and Federation of Wom-
en Telephone Workers, hereinafter FWTW, an inde-
pendent union representing traffic department
employees of Pacific Telephone in Southern Califor-
nia, engaged in contract negotiations with a view to-
ward reaching new agreements under wage reopener
provisions in their respective bargaining agreements.
Respondent Local 9511 and Respondent Local 9510,
which represent plant department employees of Pacif-
ic Telephone in Southern California and which were
parties to collective-bargaining agreements with Pa-
cific Telephone, were not involved in the wage reo-
pener discussions. In April 1968 various
communication unions, including CWA and FWTW,
began a nationwide strike against Bell Systems oper-
ating companies, including Pacific Telephone.
While neither Respondent Local struck, Respon-
dent Local 9510, through its executive board, directed
its members, on March 17, 1968, to honor all picket
lines which might be established against Pacific
Telephone; Respondent Local 9511 voted at its reg-
ular membership meeting on April 25, 1968, to honor
all picket lines established during the strike.
On April 18, 1968, duly authorized picket lines
were established by CWA Local 9590 at the Pacific
Telephone facility where Oakden worked. Oakden re-
fused to walk out when members of her Local, Re-
spondent Local 9510, honored the picket line, and she
remained on the job until May 3, 1968. On April 26,
1968, FWTW struck Pacific Telephone at the facilities
where Sondra White, William White, and Walton
were employed. Each crossed the FWTW picket line
and worked during the strike. All picketing ceased on
May 5, 1968.
Respondent Local 9511 separately advised Sondra
White, William White, and Walton that charges had
been brought against them for violations of article
XIX, section 1, of the constitution of the Communica-
tions Workers of America. Respondent Local 9510
similarly advised Oakden that charges had been
brought against her for violation of the identical pro-
vision of the CWA constitution. Thereafter, Sondra
White, William White, and Walton were found guilty
by trial courts of Respondent Local 9511; Oakden
was found guilty by trial court of Respondent Local
9510. All were fined, the amount of which was calcu-
lated by approximating the employee's total earnings
while working behind the picket line and adding a
token amount.'
Sondra and William White appealed the decisions
of the trial courts, culminating in appeals to the con-
2 Sondra White worked for 6 days during the strike and earned $139.10;
she was fined $ 161 William White worked for 5 days during the strike,
earning $147. His fine totaled $176 Walton also worked for 6 days and
earned $160. He was fined $ 176. However , although Oakden earned $227
while working during the strike, she was only fined $150
vention of the Communications Workers of America.
By June 30, 1969, both Sondra and William White
were informed that the convention had, on or about
June 20, 1969, denied their final appeals. Respondent
Local 9511 contacted Sondra and William White by
letter on or about June 20, 1969, and demanded full
payment of the fines, advising that court action would
be commenced if payment was not received. Walton
notified Respondent Local 9511 on July 8, 1968, that
he would abide by the trial court's decision. By May
21, 1969, Walton had not yet tendered payment of the
fines in a manner satisfactory to Respondent Local
9511, which on that date notified Walton that court
action would be instituted if payment in full was not
received. On or about August 20, 1969, Sondra White,
William White, and Walton were served with a sum-
mons and complaint on behalf of Respondent Local
9511 in the Municipal Court, North County Judicial
District, County of San Diego, State of California.
The proceedings were stayed on January 14, 1970,
pending final determination by the Board of the un-
fair labor practice charge filed in Case 21-CB-3488.
Oakden timely appealed the decision of the trial
court of Respondent Local 9510 to the membership of
the Union. The trial court's decision was affirmed in
full in March 1969. No further appeal was taken. On
September 24, 1969, Oakden was notified by Respon-
dent Local 9510 that it would seek collection of the
fine in small claims court unless she paid the sum
assessed by the trial court. Respondent Local 9510
has not attempted to collect or enforce the fine against
Oakden by the institution of legal proceedings.
B. Contentions of the Parties
General Counsel contends that the fines were arbi-
trary and unreasonable and therefore constituted un-
lawful restraint and coercion within the meaning of
Section 8(b)(1)(A). The Charging Parties argue that
by the inclusion of a grievance and arbitration clause
in the collective-bargaining agreement Respondents
had, by implication, agreed not to strike; that the
work stoppage was therefore contrary to the bargain-
ing agreement; and that fines assessed for honoring a
lawful provision of a bargaining agreement are clearly
unlawful restraint and coercion. Further, the Charg-
ing Parties argue that the complaints are timely, since
the final notices of the payments due, the threats to
sue, and the institution of legal proceedings to collect
the fines occurred within the 10(b) period. It is Re-
spondents' position that the issuance of complaints is
time barred by Section 10(b); that the fines were im-
posed for crossing a lawful picket line; that the institu-
tion of legal proceedings to collect such fines does not
constitute unlawful interference; and that the fines
were reasonable in amount.
CWA, LOCAL 9511 435
Conclusion
The charges, the trial court proceedings, the initial
assessment of the fines by Respondent Local 9511
and Respondent Local 9510, and the resolution of
Oakden's appeal to the membership of Respondent
Local 9510, all occurred more than 6 months prior to
the filing of charges herein. Walton took no appeal of
the trial court's decision and Oakden did not pursue
her appeal beyond the first stage. Thus, all the opera-
tive facts necessary to make out the alleged 8(b)(1)(A)
violation by Respondents against Walton and Oak-
den took place outside the 10(b) period. The Board
has recently held that it will not base an 8(b)(1)(A)
violation upon a respondent's pre-10(b) levied fine.'
This is precisely what the General Counsel and
Charging Party would have us do in this instance, as
Respondents' only post-10(b) action with regard to
the fines of Walton and Oakden had been threats to
sue and the institution of legal proceedings to collect
Walton's fine . For this reason, Members Brown and
Jenkins shall dismiss those portions of the consolidat-
ed complaint alleging violations of Section 8(b)(1)(A)
by Respondents against Walton and Oakden.
Sondra and William White did not acquiesce in the
decisions of Respondent Local 9511's trial courts, and
timely pursued their rights of appeal as provided in
CWA's constitution, terminating in appeals to the an-
nual CWA convention. The convention is empowered
by the constitution to affirm, reverse, or modify deci-
sions that come before it. Since Sondra and William
White appealed, the fines levied against them did not
become final until the Union's internal appeal proce-
dures were exhausted. Their appeals were denied by
the convention on or about June 20, 1969, a date well
within the 10(b) period. Thus, in contrast with the
mere attempts to collect the established fines from
Walton and Oakden, the convention's review of Re-
spondent Local 9511's trial court decisions regarding
Sondra and William White was a procedural step nec-
essary to establish with finality the propriety of the
fines themselves . Therefore, the cause of action
claimed by Sondra and William White is not predicat-
ed solely upon Respondent Local 9511's pre-10(b)
actions. Accordingly, we must consider the merits of
that portion of the consolidated complaint alleging
8(b)(1)(A) violations by reason of the fines imposed
against Sondra and William White by Respondent
Local 9511.
As previously noted, the consolidated complaint
alleges that the fines are "arbitrary, unreasonably
large, excessive, and constitute unreasonable disci-
pline," and that, by demand for payment of the fines
and by taking action to implement the collection of
the fines, employees have been subject to unlawful
restraint and coercion in violation of Section
8(b)(1)(A). No claim is made that Respondent is seek-
ing to enforce an arbitrary, capricious, or otherwise
unlawful internal rule.4 We have previously held that
the reasonableness or excessiveness of a fine imposed
upon a union member for breach of a lawful internal
rule is not relevant to a determination of whether
Section 8(b)(1)(A) has been violated.5 No other
reasons are advanced, and we perceive none, for find-
ing Respondents' conduct violative of Section
8(b)(1)(A) on grounds of "arbitrariness." According-
ly, we shall dismiss those portions of the consolidated
complaint alleging violations against Sondra and Wil-
liam White .6
As nothing in the reason for the fines or in the
method of enforcement cognizable under 8(b)(1)(A)
has been advanced, we shall dismiss the complaint in
its entirety.
ORDER
It is hereby ordered that the consolidated com-
plaint herein be, and it hereby is, dismissed in its
entirety.
We find no ment in Charging Parties' contention that the grievance and
arbitration clause within the bargaining agreement between Respondent Lo-
cal 9511 and Pacific Telephone is the functional equivalent of a no-stake,
no-lockout clause for purposes of rendering the striking employees' conduct
unprotected. Thus, Respondent Local 951 l's decision to honor picket Imes
established by sister labor organizations was not contrary to its collective-
bargaining agreement with Pacific Telephone. Cf Local 174, Teamsters, etc
v. Lucas Flour Co, 369 U S 95
5 International Association of Machinists and Aerospace Workers, AFL-
CIO, Local Lodge No 504 (Arrow Development Co), 185 NLRB No. 22.
' International Association of Machinist and Aerospace Workers, AFL-CIO 6 Chairman Miller would rely on Arrow Development Co., supra, in dismiss-
(Union Carbide Corporation) 180 NLRB No . 135, reaffirmed 186 NLRB No. ing the complaint as to all four employees He does not find it necessary to
138. pass on the 10(b) issue