Federation of Telephone Workers

National Labor Relations Board - Board Decisions

Dec 7, 1971

194 N.L.R.B. 461 (N.L.R.B. 1971)

FEDERATION OF TELEPHONE WORKERS 461
Federation of Telephone Workers of Pennsylvania,
Local 58 (Bell Telephone Company of Pennsylva-
nia) and Nancy S. Bernola . Case 6-CB-2048
December 7, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On August 13, 1971, Trial Examiner Louis Libbin
issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed a brief in
answer to certain of Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, Federation of Telephone Workers of
Pennsylvania, Local 58, Rochester, Pennsylvania, its
officers, agents, and representatives, shall take the
action set forth in the Trial Examiner's recommended
Order.
1 The Respondent has excepted to certain credibility findings made by
the Trial Examiner. It is the Board's established policy not to overrule a
Trial Examiner's resolutions with respect to credibility unless the clear
preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544,
enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and
find no basis for reversing his findings.
TRIAL EXAMINER'S DECISION
the unfair labor practices, the complaint alleges, and
Respondent's duly filed answer denies, that Respondent
caused and/or attempted to cause the Bell Telephone
Company of Pennsylvania to refuse to award overtime to
its employee Bernola because of her lack of membership in
Respondent and/or because she filed charges against
Respondent with the Board- and thereby violated'Section
8(b)(2) and 8(b)(1)(A) of the Act.
This case was tried before me at Pittsburgh, Pennsylvani-
a, on May 24 and 25, 1971. All parties appeared at the trial
and were given full opportunity to participate in said trial.
On June 28, 1971, the General Counsel and Respondent
filed briefs, which I have fully considered. For the reasons
hereinafter indicated, I find that Respondent engaged in
conduct violative of Section 8(b)(2) and 8(b)(1)(A) of the
Act.
Upon the entire record in the case,' and from my
observations of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Bell Telephone Company of Pennsylvania, herein called
the Company, a Pennsylvania corporation with its principal
office located in Philadelphia, Pennsylvania, provides
communications services throughout Pennsylvania and, in
conjunction with other telephone companies, provides
interstate communications services throughout the United
States. During the 12-month period immediately preceding
the issuance of the instant complaint, the Company's gross
volume of business exceeded $1 million; during the same
period, the Company received goods and materials, valued
in excess of $50,000, directly from points located outside
the Commonwealth of Pennsylvania for use at its
Pennsylvania facilities.
Upon the above admitted facts, I find, as Respondent's
answer further admits, that the Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE STATUS OF RESPONDENT UNION
The complaint alleges, the answer admits, the record
shows, and I find that the Respondent Union named in the
caption of the complaint is a labor organization within the
meaning of Section 2(5) of the Act.
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: Upon charges filed on
December 7, 1970, and February 4, 1971, by Nancy S.
Bernola, an individual, the General Counsel of the
National Labor Relations Board, by the Regional Director
for Region 6 (Pittsburgh, Pennsylvania), issued a com-
plaint, dated March 30, 1971, against Federation of
Telephone Workers of Pennsylvania, Local 58, herein
called Respondent or Respondent Union. With respect to
1 I hereby note and correct the following obvious inadvertent errors in
the typewritten transcript of the testimony: On 1 8 of p 17, "proceeding" is
corrected to "succeeding"; on 1. 20 of p 173, the number "2" is corrected
HI. THE UNFAIR LABOR PRACTICES
A. Introductiorn,• the Issues
The Company has had successive collective-bargaining
agreements with the Federation of Telephone Workers of
Pennsylvania, herein called FTWP, since 1939. Nancy
Bernola, the Charging Party herein, has been employed by
the Company since about 1955 and became a member of
Respondent Union about 1959. In June 1968, she was
to "1"; and on 1 17 of p. 216, "Hookmck" is corrected to read
"Hoodnick."
194 NLRB No. 80
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notified that intraunion charges had been preferred against
her for failing to appear for her assigned picket duty that
spring when Respondent was engaged in an economic
strike against the Company. In November 1968 and again
in January 1969, she was notified that on November 14,
1968, a union trial court had found her in violation of
FTWP's constitution and fined her $45. In November or
December 1969, Bernola'informed Respondent's then Vice
President Gilbert Steele that she would "drop out" of the
Union rather than pay the fine because she felt the fine was
"unfair."
On October 13, 1970, pursuant to a legal action taken by
Respondent through its President David Saras to collect the
$45 fine, a hearing was held before a justice of the peace
who issued a judgment in favor of Respondent 3 days later.
However, Bernola filed charges with the Board against
Respondent on October 13, 1970, immediately after the
conclusion of the hearing before the justice of the peace.
That charge, which was withdrawn a few months later,
alleged that Respondent "restrained and coerced employ-
ees" of the Company within the meaning of Section
8(b)(1)(A) of the Act. The charge named Saras as the union
representative to contact and was received by him on
October 15.
On October 27, 1970, Foreman George Wilcox assigned
some overtime work to Bernola, Immediately upon being
informed of the overtime, Respondent's President Saras
had a conversation with Foreman Wilcox in which he
sought to have Wilcox award the overtime work to certain
other employees instead of to Bernola. As a result of this
conversation, the Company did not award the overtime
work to Bernola.
The principal issue litigated in this proceeding is whether,
in seeking to have the Company award Bernola's overtime
assignment to other employees, Saras was motivated by
Bernola's lack of membership in Respondent and/or
because she filed charges against Respondent with the
Board, as the General Counsel contends and the complaint
alleges, or by a desire to have the Company comply with
what was Respondent's understanding of the agreement
which FTWP had with the Company on the distribution
and equalization of overtime, as Respondent contends.
Also involved are the usual credibility issues.
B. The Incident Involving Overtime Work
1. The undisputed facts
The facts hereinafter set forth are based on credited
testimony which is either undemed or admitted.
At the time of the instant trial, Nancy Bernola had been
employed by the Company about 15 years, the last 7 years
in the Company's Rochester, Pennsylvania, office. She was
classified as a field clerk for the last 3 years.
The Company has a service center located on the second
floor of its Rochester office under the ultimate supervision
of Foreman George Kredel. Reporting directly to him in
the service center are Control Foreman Wilcox and
Foreman Russell. Employees in the service center are
classified as field clerks, general field clerks, desk men, and
facilities assigner. In this group are about five field clerks
and six general field clerks, a more skilled and higher paid
classification.
In 1968 the Company created the position of control
foreman's clerk in its service center. This position merely
required the performance of certain specified duties and
retained the classification ,of field clerk. Bernola was the
first one assigned to this position which she occupied on a
regular basis for about 1 year until July 1969. Thereafter,
she trained the girls who subsequently occupied that
position. She herself continued in the classification of a
field clerk, performing other duties on a regular basis
outside the service center on the third floor under the
supervision of Foreman Farrell. However, she was
frequently asked to, and did, perform the control foreman
clerk's work on an overtime basis and did so for the most
part in the service center on the second floor. At the time of
the instant trial, Rose Avolio had been the regular full-time
control foreman's clerk for over a year. During her tenure,
whenever overtime was required to be performed in the
work of the control foreman's clerk, it was the consistent
established practice of the service center control foreman to
award the assignment first to Rose Avolio because the
incumbent on the job had always been given first
preference, then, if she refused it, to Beverly Broadie,
another field clerk regularly employed in the service center
who had been the control foreman's clerk for about 6
months before Avolio and who was historically lower in
overtime than Bernola, and finally, if she refused it, to
Bernola who was then regularly employed as a field clerk
outside the service center. As already noted, all three were
classified as field clerks.
On October 27, 1970, Service Center Control Foreman
Wilcox approached Rose Avolio and asked if she could
work overtime to complete a report that she had been
working on. Avolio refused the overtime for personal
reasons. Wilcox then approached Beverly Broadie and
asked if she could work overtime to complete the report.
When Broadie also refused, Wilcox approached his
supervisor, Foreman Kredel, and explained that the report
in question had to be completed on an overtime basis and
that the overtime had been refused by employees Avoho
and Broadie. Wilcox suggested that he ask Bernola to do
the work on an overtime basis. Kredel suggested that before
doing so Wilcox should first go back and ask Avolio and
Broadie again. Wilcox did this that same day, and again
both women refused the overtime . Wilcox then immediate-
ly went upstairs directly to Bernola, told her what had to be
done on Avolio's report, asked if she could work overtime
in the evening and any additional overtime, including
Saturday, if necessary to get the work done by the end of
the month. Bernola agreed to do so.
Later that afternoon, Respondent's President Saras, who
was employed as a desk man in the service center, had a
conversation with Foreman Wilcox about the overtime
assignment awarded to Bernola . At the conclusion of the
conversation, Wilcox went to Kredel, explained the
situation to him, and it was decided that they "shouldn't
'allow Mrs. Bernola to do the work." Kredel then instructed
Foreman Farrell that same day to tell Bernola that she was
not to perform the overtime work that had been assigned to
her by Wilcox. Farrell thereupon informed Bernola not to
FEDERATION OF TELEPHONE WORKERS
work the overtime unless otherwise notified because the
Company was having "trouble." After Bernola left work
that day, Kredel left a note on her desk instructing her not
to perform the overtime work in case she came in early the
next morning. He also telephoned her home that evening
and either told her or left word that she was not to do that
work. The next day, Kredel suggested that Wilcox go back
and reask Avolio and Broadie to do the work. However,
before he could do so, Avolio came to Wilcox and, for
unexplained reasons, volunteered to do the overtime work.
Wilcox agreed. The work was performed in the evening
during that week and completed on Saturday.2
2. The disputed testimony
There is a conflict in the testimony relating to the
substance of the October 27 conversation between Saras
and Wilcox concerning the overtime in question.
Foreman Wilcox testified that he was approached by
Saras in the service center and that the following
conversation ensued: Saras stated that he was aware of the
fact that Wilcox had asked Mrs. Bernola to come down and
do the overtime work, that he did not think this was "a good
idea," and that he thought "the people would resent it."
Wilcox thereupon explained that this report had to be done,
that he had asked Mrs. Avolio and Mrs. Broadie, that they
both had refused to do the work, and that, since the report
had to get done and there was nobody else to do it, Mrs.
Bernola was going to do it. Saras then warned Wilcox that,
if he brought Mrs. Bernola in to do the work, "the people in
the service center would not be working." When Wilcox
asked Saras if he was "threatening me with a walkout,"
Saras replied that Wilcox "could take it any way that I
wished." That ended the conversation.
Wilcox further testified on cross-examination that no one
else was involved in his conversation with Saras, although
others were present in the room, that he did not know where
Wanda Gossard (the job steward for female, employees)
was at that time, and that Gossard never told him about
particular employees in the service center who were trained
as control foreman's clerks.
Respondent's President Saras testified that in the after-
noon of October 27 Avolio came and told him that there
would be overtime on her job in the service center and that
someone out of the service center would be coming in,
"possibly Mrs. Bernola," that he then asked Job Steward
Gossard if she knew what was going on, that when she
replied in the negative they both went to Wilcox and the
following conversation ensued: Saras asked Wilcox if there
was going to be overtime on the control foreman clerk's job
that evening. When Wilcox gave an affirmative answer,
Saras "asked him who." Wilcox answered that it was Mrs.
Bernola. Saras then called Wilcox's attention to the fact
that there were others in the service center with far less
overtime and asked if they were considered. Wilcox asked,
"are you doing this because of Mrs. Bernola?" Saras
replied, "definitely not," and added that "the people in the
service center should be equalized, first." Gossard men-
tioned Cathy Hoodnick and Dorothy Popik as service
463
center employees to be considered for that work. After
some further discussion, Wilcox stated that he would get
back to them later.
Saras denied telling Wilcox that the people in the service
center would not be working if Mrs. Bernola was brought in
to do the work.
Job Steward Gossard testified that she accompanied Saras
to Wilcox and that she was present during the entire
conversation with Wilcox. Her testimony in substance
corroborates Saras' version of the conversation with
Wilcox. She testified to the following additional statements
during the conversation: Wilcox had stated that he was
unable to get anybody to do the work and that he had asked
Avolio who refused to do it. Gossard told Wilcox that she
knew that Hoodnick and Popik had done that work in the
past. Wilcox replied that he did not realize this, that he
would have to think about it, and that he would "get back
to you people on it."
In response to counsel's question as to whether Saras at
any time said that the "people in the service center wouldn't
work or would stop working" if Mrs. Bernola was called in,
she testified, "No, sir." In response to counsel's 'further
question as to whether "any statement like that was made,"
she testified "I did not hear any."
3. Credibility resolution
The foregoing disputed testimony merely raises a factual
issue, the determination of which depends wholly, on a
credibility resolution. I credit the testimony of Foreman
Wilcox and find the facts to be substantially as hereinabove
related in his testimony. I further find that Saras' statement
that "the people in the service center would not be
working" if Wilcox brought Mrs. Bernola in to do the
overtime work, considered in the setting and context in
which it was made, constituted a threat of a work stoppage.
In accepting Foreman Wilcox's version of the conversation,
I have been influenced by the following factors:
(a,) The demeanor of the witnesses is a substantial factor
for my credibility resolution. A careful scrutiny of the
demeanor of the witnesses while testifying under oath
caused me to be more favorably impressed with Wilcox as a
forthright, reliable and honest witness.
(b) Wilcox appears to be the only unbiased and
disinterested witness. Indeed his testimony may have
rendered his employer liable for a violation of the Act if
charges had also been filed against the Company. Yet, he
testified without any reluctance in a clear, precise, direct,
consistent, and unequivocal manner.
(c) Saras and Gossard testified that Saras asked Wilcox
who was going to perform the overtime. However, Saras'
testimony that prior to that conversation Avolio had
already informed him that "possibly Mrs. Bernola" would
be coming in, tends to corroborate Wilcox's version that
Saras stated that he was aware of the fact that Wilcox had
asked Bernola to come down to do the work.
(d) Neither Saras nor Gossard testified that Wilcox had
stated that he had also asked Mrs. Broadie and that she too
had refused to perform the work. Yet neither Gossard nor
2 Although Kredel had informed Saras the preceding day that the best recollection was that Avoho "did it all."
overtime work would be taken care of by Avoho and Broadie, Wilcox's
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saras testified that Gossard also mentioned Broadie as one
of the service center girls who had performed that work in
the past, although she admittedly had done so and
historically had far less overtime than those allegedly
mentioned by Gossard. Thus, the failure to include
Broadie 's name under these circumstances tends to
corroborate Wilcox's version that he stated he had asked
both Avolio and Broadie and both had refused.
(e) Saras at first testified that he was the one who
mentioned specific names of service center girls with far
less overtime who should be considered. However, when
asked by the Trial Examiner what names he had
mentioned, Saras changed his testimony and stated, "I
personally did not mention any names" but that Miss
Gossard did.
(f) Saras admitted that Wilcox asked him, "are you doing
this because of Mrs. Bernola?" This admission, coupled
with fact that the foremen suddenly yielded and departed
from their long and well-established method of assigning
overtime, as they did when they revoked Bernola's overtime
assignment, tends to corroborate Wilcox's version that
Saras threatened Wilcox with a work stoppage if he brought
Mrs. Bernola in to perform the overtime work in question.
C. Contentions and Applicable Principles
Respondent's counsel contends in his brief that as early
as 1950 the FTWP and the Company had "agreed to the
principle of overtime in a basic group of employees under a
particular foreman, with the understanding that local
conditions would vary"; that under this agreement,
"overtime is to be equally distributed within a foreman's
group"; that to facilitate the policy of overtime equalization
in foremen groups the Company agreed to make overtime
lists available where requested and to offer overtime "to the
lowest qualified person on the list"; and that the
representative's manual of the FTWP "instructs its local
officers and representatives as to contract interpretations
negotiated with management." He further contends that, in
accordance with the said agreements between the Company
and the FTWP, all the employees in the Rochester service
center under the ultimate supervision of Foreman Kiedel
constitute the foreman's group for the distribution of
overtime; that, as Bernola was not in that group because
she was not employed in the service center, Saras correctly
insisted that the overtime be offered to other qualified
employees in the service center group before Bernola was
called; that General Field Clerks Hoodnick and Popik were
service center employees who were qualified to perform
control foreman clerk's work and should have been offered
the overtime assignment; that Saras' contention to
Foreman Wilcox was based on Respondent Union's
interpretation and understanding of the overtime agree-
ments between the Company and the FTWP; and that,
even if such interpretation and understanding were
erroneous, it was at the very least a "colorable claim"
presented in good faith.
The General Counsel contends in his brief that
Respondent's defense is not supported by the record and is
3 Sec. 8(b)(2) of the Act, to the extent here relevant, makes it an unfair
labor practice for a union or its agents "to cause or attempt to cause an
employer to discriminate against, an employee in violation of subsection
pretextuous. Thus, he argues that the record fails to
establish any such agreements or requirements upon the
Company; that the Company had merely agreed to accept
the "principle of equalization of overtime" among employ-
ees in a foreman's group , geographic location , or "some
other feasible grouping"; that the contents, form, applica-
tion, or implementation of any agreement (or agreements)
were all "problems" that had to be negotiated at the local
union level ; and that the record contains no evidence of
any agreement on the local level between Respondent and
the Company which requires the Company to equalize
overtime . He further contends that , in assigning the
overtime in question to Bernola , the Company was merely
following the established practice at the local level at
Rochester of attempting to equalize overtime within the
same craft or classification over a yearly period, and that
this practice had been consistently followed in the past
without any objection by any one in Respondent Union.
It is not disputed that in seeking to have Bernola's
overtime assignment revoked and to have her replaced on
that assignment with other employees from the service
center in the manner previously found, Respondent's
President Saras did in fact cause the Company to
discriminate against Bernola by denying her overtime work.
And this is so even if, contrary to my previous finding,
Foreman Wilcox had not been threatened with a work
stoppage if he brought Bernola in to perform the overtime.
However, it is also true that, as Respondent's counsel points
out in his brief, not every employee discrimination in which
a union causes an employer to engage is proscribed by the
Act. For, as Respondent's counsel correctly states, there
can be no violation of Section 8(b)(2) of the Act unless what
a union causes or attempts to cause an employer to do
would, if done by the employer, violate Section 8(a)(3) of
the Act .3 In the instant case, this test would be clearly met
if, as the General Counsel contends, Saras' conduct was
truly motivated by Bernola's nonmembership in Respon-
dent Union and by her action in having filed an unfair
labor practice charge against Respondent . On the other
hand, the Act would not be violated if, as Respondent's
counsel contends, Saras' conduct was in fact based on the
"interpretation and understanding of the overtime agree-
ment between the Company and the Federation of
Telephone Workers of Pennsylvania."
The foregoing principles and resulting conclusions are
not in dispute. The outcome thus revolves on the pivotal
question of President Saras ' true motivation.
D. Discussion and Conclusions
1. As to Respondent's defense
There is no evidence or claim that the asserted
agreements on overtime have ever been included in any of
the collective-bargaining agreements which have been in
effect between FTWP and the Company throughout the
entire period. Nor is there any evidence of any agreements
on the local level at Rochester between the Company and
Respondent concerning the equalization of overtime.
8(a)(3)", and Sec . 8(a)(3) makes it an unfair labor practice for an employer
to discriminate "to encourage or discourage membership in any labor
organization."
FEDERATION OF TELEPHONE WORKERS 465
Foreman Kredel, who had been employed at the Rochester
service center for about 18 years, and Foreman Wilcox
credibly testified, without contradiction, that they had
never been informed and had no knowledge of any
company agreements with FTWP or with Respondent with
respect to the distribution of overtime. These factors raise
considerable doubt in my mind as to whether the Company
was in fact contractually obligated to assign overtime in the
manner claimed by Respondent's counsel. However, as
counsel correctly points out, it is not necessary for me to
determine the validity and content of the alleged agree-
ments relied on by Respondent. For, as previously stated, a
sufficiently adequate defense will be made out by a showing
that Saras' conduct was in fact motivated by what he in
good faith believed to be Respondent's interpretation and
understanding of the alleged overtime agreements between
Respondent and FTWP. For the reasons hereinafter
indicated, I am convinced and find that Respondent's
asserted defense in this respect was not the true motivating
reason for Saras' conduct but has been advanced as a
pretext or afterthought to cloak the true reason.
(a) The procedure which was followed in making the
overtime assignment to Bernola was the same one which in
the past had been consistently used at the Rochester service
center without any complaint or objection from anyone in
Respondent Union. Thus, Foremen Kredel and Wilcox
credibly testified that it was the Company's practice at the
local level at Rochester to attempt to equalize overtime
within the same craft or classification over a yearly period;
that such attempts were not always successful; that field
clerks and general field clerks were treated as two separate
crafts or classifications for this purpose; that experience
was a major factor considered in assigning overtime and
was the reason why overtime could not always be equalized
between two people in the same craft; that Bernola was one
of the most capable, experienced and qualified employees
to perform the control foreman clerk's job; and that the
practice of assigning overtime in this job only to Field
Clerks Avolio, Broadie, and Bernola, in that order, had
been consistently followed in the past without any
objection from anyone in Respondent Union. There is no
evidence that either Saras or anyone else from Respondent
Union had ever previously objected to the manner in which
overtime was assigned in the service center.4
(b) It is most significant that Saras admittedly was aware
of the fact that Bernola actually worked a great number of
overtime hours in the service center on the control foreman
clerk's job during the period in 1970 prior to October 13
and that he admittedly made no complaint that this work
should first have been offered on an overtime basis to other
allegedly eligible service center employees such as-General
Field Clerks Hoodnick and Popik. Nor admittedly did
anyone else from Respondent voice any complaints in this
respect. Counsel for Respondent contends that this
occurred only when Avolio was not working either because
she was on vacation or was ill, and Saras testified that that
was his understanding. I fail to see the significance of this
point. For according to Respondent's interpretation of the
alleged agreements with the Company on the equalization
of overtime, that overtime should first have been offered to
eligible service center employees such as Hoodnick and
Popik before being awarded to an employee outside the
service center like Bernola. In any event, the Company's
records show that there were occasions in February, May,
and August 1970 when such overtime was awarded to
Bernola even when Avolio was working (G. C. Exhs. 5(b),
12, and 3).5
(c) In objecting to the October 27 overtime assignment to
Bernola, it is not disputed that Saras at no time mentioned
to Foreman Wilcox or Kredel anything to the effect that his
objection was based on their failure to follow what he
believed to be Respondent's interpretation and understand-
ing of the alleged overtime agreement between the
Company and FTWP. He at no time mentioned any
agreements to them. Indeed, he never testified that he was
aware of Respondent's interpretation or understanding of
any such agreements or even of their existences
2. As to Saras' true motivation 7
As previously noted, Nancy Bernola became a member
of Respondent Union in or about 1959. While on the picket
line during the course of an economic strike by Respondent
against the Company in the spring of 1968, Bernola asked
Douglas, who was one of Respondent's stewards, and also
Respondent's President Saras, several questions about the
women's working conditions and the benefits they were
then receiving under the contract and also expressed
dissatisfaction with "some of the things that were going
on." She failed to carry out some of her assigned picket
duties during that strike and in June 1968 was notified by
the FTWP that intraunion charges had been preferred
against her for that reason. She failed to appear at a hearing
on these charges held before a union trial court on
November 14, 1968, and was notified by letters, dated
November 1968 and January 1969, that the said trial court
had found her in violation of FTWP's constitution and
fined her $45. Bernola refused to pay the fine but continued
4 At the time of the instant hearing Saras had been employed at the
Rochester service center about 5 years. His testimony concerning his
"knowledge" of how overtime was assigned in the service center is
inconsistent and confusing. Thus, he first testified that "overtime is on an
equalization basis. At times, when feasible, low people will be asked in all
groups" (emphasis supplied). When asked by Respondent's counsel
"among whom" there was "equalization," he testified, "among the different
crafts." This conceivably could be construed as corroborative of the
testimony of Foremen Wilcox and Kredel. He then added, "In other
words, everyone in the service center . . . one group." After further
prodding by Respondent's counsel, Saras testified that there were two
groups in the service center for purposes of overtime, that desk men were
placed in one group and that field clerks and general field clerks were
combined together in the other group Under all the circumstances, I do
not credit Saras' testimony to the extent that it conflicts with that of Kredel
and Wilcox.
5 I do not credit Saras' testimony that he was not aware of such
occasions . Bernola's overtime work on the control foreman clerk 's job was
performed for the most at Avoho's desk in the service center and in the
presence of Saras and Union Steward Douglas.
6 Contrary to the assertion by Respondent's counsel in his brief, the fact
that under threat of a walkout the foreman yielded to Saras' request that
the overtime assignment not be awarded to Bernola can under no
circumstances be construed as their agreement with his position.
7 Events occunng prior to August 4, 1970, which is more than 6 months
before the filing of the 8(b)(2) charge in the instant case, have been
considered by me for the light they may shed to illuminate and explain
Saras' motivation and conduct in the events which occurred thereafter.
N L R.B. v. Bryan Manufacturing Co, 362 U.S. 411; Keller Aluminum Chairs
Southern, Inc., et al, 173 NLRB 947, 950-951.
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to pay her dues until sometime in November or December
1969, when she informed Respondent's then Vice President
Gilbert Steele that she would "drop out" of the Union
(FTWP) rather than pay the fine because she felt the fine
was "unfair."8
Shortly thereafter Saras stopped her on the stairway while
she was on her way to lunch and asked her if it was true that
she "dropped out of the Union." Upon receiving an
affirmative reply, Saras told her that she would be "sorry."9
Thereafter in 1969, and again in January 1970, Saras
posted a notice on the union bulletin board at the
Company's Rochester, Pennsylvania, facilities which read:
1970
INFORMATION BULLETIN
NON-UNION MEMBERS
-FREE RIDERS-
NANCY BERNOLA
When Bernola continued to refuse to pay the $45 fine; the
Respondent, acting through President Saras, instituted a
civil suit against her before a justice of the peace to collect
the fine and a hearing on this action was held on October
13, 1970. At this hearing Bernola stated that she did not pay
the fine because she felt she had been unjustly fined in view
of the fact that other employee members who did not picket
were not fined. In his statement before the justice of the
peace, Saras said that Bernola had asked questions and
expressed dissatisfaction about the benefits that women
had been receiving under the current contract, that at tunes
she had spoken out against the Union on some matters, that
she was a "dissident," and that she "felt this was the reason
why they were fining me 'specifically" for not having
picketed.1o
On October 13, 1970, immediately after the conclusion of
8 The findings in this paragraph are based on Respondent's exhibits and
on Bernola's credited testimony which is undemed. Although the FTWP
mailed a certified letter to Bernola on March 7, 1969, stating that she was
automatically expelled for not paying her fine, the record is undisputed
that Bernola was unaware of the content of this letter which was returned
by the post office before she appeared to claim it. There is no evidence of
any further attempt to notify her of any decision to expel her despite the
fact that she thereafter continued to pay dues until November as she
credibly testified without any contradiction
9 The findings as to this conversation with Saras are based on Bernola's
credited testimony Saras denied having made this statement or having
engaged in a conversation on this subject. Respondent contends that
Bernola should not be credited because other aspects of her testimony
disclose inconsistencies in certain minor respects . However, as I have
previously found, other aspects of Saras' testimony also contain
inconsistencies and confusion. I have already found that Saras was a
witness unworthy of belief. Unlike Saras, Bernola impressed me as a
sincere and honest witness who testified to the true facts as best she could
recall them. I do not credit Saras' denials
10 The findings concerning the statements made by Saras at that hearing
are based on a composite of the mutually consistent and credited testimony
of Nancy Bernola and her husband who has also attended the hearing.
Saras denied using the word "dissident" or stating that she was fined
because she spoke against the Union He testified that he gave as the
reason for the collection of the fine that "we felt that Mrs. Bernola did not
stay and do her picket line duties." FTWP Division President Gnglak, who
also made a statement before the justice of the peace, corroborated Saras'
version. As between these two sets of interested witnesses for their
the hearing before the justice of the peace, Bernola's
husband drove her to the Board's Regional Office where
she filed unfair labor practice charges against Respondent,
alleging that Respondent "restrained and coerced employ-
ees" of the Company within the meaning of Section
8(b)(1)(A) of the Act and naming Saras as the union
representative to contact. On October 15 these documents
were delivered to Saras who admitted that he received
them, that he knew they involved some kind of charge
which Bernola was making against Respondent Union with
the Labor Board, and that he sent them on to FTWP's
division office.1' The next day the justice of the peace
announced his decision, rendering judgment in favor of
Respondent.12
Throughout the year 1970 prior to the filing of the
October 13 unfair labor practice charges, Bernola on a
great number of occasions had worked overtime, totaling a
large number of hours, on the control foreman clerk'sjob in
accordance with the service center foremen's practice of
awarding this overtime to her whenever service center field
clerks Avolio and Broadie refused such assignments, as
previously found. Although Respondent's President Saras
was fully aware during this period that Bernola was
performing this work on an overtime basis, neither he nor
any other representative of Respondent had ever objected
to the service center foremen about these facts or their
practice in this respect or to the fact that other service
center employees, including Hoodnick and Popik, were not
offered this work on an overtime basis, all as previously
found. However, on October 27, 1970, the very first time
after filing the above-mentioned unfair labor practice
charges that she was assigned to work overtime in the
control foreman clerk's job in accordance with usual past
practice, Saras immediately protested her assignment on
the alleged ground that the work should first be offered to
other service center employees, all of whom were members
of Respondent Union,13 and under a threat of a walkout by
the service center employees caused the foreman to revoke
respective sides, I have credited the version of Mr . and Mrs. Bernola, set
forth in the text , as being the more reliable . I have previously found Saras
not to be a credible witness on other matters and have credited Bernola
when her testimony conflicted with that of Saras. In this instance , Bernola
testified with the detailed specificity which normally does not accompany a
fabrication, and neither Saras nor Gnglak denied that Saras had in fact
made the remaining statements and accusation which Bernola attributed to
him in the text. Moreover , there are additional factors which tend to lend
credence to the credited version in the text. Thus, the record clearly
establishes, without contradiction , that Bernola truly was a "dissident"
union member and that the Union took cognizance of it . Indeed, Griglak's
1968 letter to Bernola, informing her of the fine imposed by the Union trial
court, states among other flings that "Based upon testimony introduced at
your trial, the jury wanted it noted that you had stated your intention of
violating the Constitution even before the strike began and subsequently
reflected an uncooperative attitude during that trying period " In addition,
Gnglak admitted that the only other person from Respondent Union who
was charged for failing to perform assigned picket duty during that strike
was not fined but was exonerated at the union hearing at which he
appeared . Contrary to the assertion of Respondent 's counsel, I do not
regard the basis of the decision rendered by the justice of the peace a few
days later as being inconsistent with the credited version set forth in the
text.
11 These charges were withdrawn sometime in December.
12 Bernola eventually paid the fine about 6 months later.
13 This is the reasonable inference, which I' herein make, from the fact
that the 1970 bulletin board notice posted by Saras lists only Bernola as the
"non-union members and free riders."
FEDERATION OF TELEPHONE WORKERS 467
Bernola's assignment and to deprive her of this overtime
work, all as previously found.
Upon consideration of all the foregoing in the light of the
afterthought and pretextuous nature of Respondent's
defense, as previously demonstrated, I am convinced and
find that in causing the Company to deprive Bernola of the
overtime work in question, Saras was truly motivated by
Bernola's nonmembership in Respondent Union and more
particularly by her action in having filed the aforestated
unfair labor practice charges against Respondent.
E. Concluding Findings
I find that Saras' conduct caused the Company to
discriminate with regard to the employment conditions of
Bernola. In view of my above findings as to the true reasons
for Saras' conduct in this respect, I further find that said
discrimination reasonably tended to encourage member-
ship in Respondent Union and to restrain and coerce
employees in the exercise of their rights guaranteed by
Section 7 of the Act. As Respondent is obviously liable for
the conduct of its president, David Saras, I finally find that
Respondent thereby violated Section 8(b)(2) and 8(b)(1)(A)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
employer named in section I, above, have a close, mtimate,
and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
CONCLUSIONS OF LAW
1. Respondent Federation of Telephone Workers of
Pennsylvania, Local 58, is a labor organization within the
meaning of Section 2(5) of the Act.
2. Bell Telephone Company of Pennsylvania is an
employer within the meaning of Section 2(2) of the Act.
3. By causing the Company to deny overtime work to
Nancy S. Bernola because of her nonmembership in
Respondent and more particularly because she filed unfair
labor practice charges against Respondent, Respondent has
engaged in unfair labor practices within the meaning of
Section 8(b)(2) and 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I will recommend that it cease and
14 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted 'by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes.
desist therefrom and take certain affirmative action which
will effectuate the policies of the Act.
I will recommend that Respondent make Nancy S.
Bernola whole for loss of wages incurred as a result of
Respondent's conduct in causing the Company to deprive
her of the overtime work in the service center in October
1970, with interest thereon at the rate of 6 percent per
annum. I will further recommend that within 5 days from
the date of this Decision and Order, Respondent inform
Nancy S. Bernola and the Company, in writing, that it has
no objection to Bernola performing overtime work in the
control foreman clerk's job, or in any other job, because of
her nonmembership in Respondent Union and/or because
she filed unfair labor practice charges against Respondent.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:14
ORDER
Respondent; Federation of Telephone Workers of
Pennsylvania, Local 58, its officers, agents, and representa-
tives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Bell Telephone
Company of Pennsylvania to deny to employees any
overtime work in the control foreman clerk's job, or in any
other job, or to discriminate in any other manner with
respect to employees' terms and conditions of employment,
because of their nonmembership in Respondent and/or
because they filed unfair labor practice charges against,
Respondent.
(b) In any other manner restraining or coercing
employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make Nancy S. Bernola whole for loss of wages
incurred as a result of Respondent's conduct in causing the
Company to deprive her of overtime work in October 1970,
plus 6-percent interest.
(b) Notify Nancy S. Bernola and the said Company, in
writing, within 5 days from the date of this Decision and
Order, that it has no objection to Bernola performing
overtime work in the control foreman clerk's job, or in any
other job, because of her nonmembership in Respondent
Union and/or because she filed unfair labor practice
charges against Respondent.
(c) Post in conspicuous places in Respondent's business
offices, meeting halls, and all places where notices to
members are customarily posted, including the Company's
bulletin boards if Respondent has access to them, copies of
the attached notice marked "Appendix." 15 Copies of said
notice, on forms, provided by the Regional Director for
Region 6, shall, after being duly signed by Respondent's
authorized representative, be posted by it immediately
15 In,the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board."
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Sign and mail to the Regional Director for Region 6,
sufficient copies of said notice, to be furnished by him for
posting by the Company, if it is willing, at places where it
customarily posts notices to its employees.
(e) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of receipt of this Decision
what steps have been taken to comply herewith.16
16 In the event that this Recommended Order is adopted by the Board
after exceptions have been filed, notify said Regional Director, in wasting,
within 20 days from the date of this Order, what steps Respondent has
taken to comply herewith.
APPENDIX
NOTICE To
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Bell
Telephone Company of Pennsylvania to deny to
employees any overtime work in the control foreman
clerk's job, or in any other job, or to discriminate in any
other manner with respect to employees' terms and
conditions of employment, because they are not
members of our Union and/or because they have filed
unfair labor practice charges against our Union.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of their rights guaranteed in
Section 7 of the Act.
WE wiLL pay Nancy S. Bernola the wages she lost,
with 6-percent interest, as a result of our having caused
the Company to deprive her of overtime work in
October 1970.
Dated By
FEDERATION OF TELEPHONE
WORKERS OF
PENNSYLVANIA, LOCAL 58
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644-2977.