Federation of Telephone Workers of Pennsylvania

National Labor Relations Board - Board Decisions

Oct 15, 1976

226 N.L.R.B. 427 (N.L.R.B. 1976)

FEDERATION OF TELEPHONE WORKERS
Federation of Telephone Workers of Pennsylvania
(Bell of Pennsylvania) and Paul A . Shaffer . Case 6-
CB-3385
October 15, 1976
DECISION AND-ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 20, 1976, Administrative Law Judge
Robert Cohn issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We cannot find that the General Counsel has
shown by a preponderance of the evidence that the
Respondent illegally threatened employee Paul Shaf-
fer in violation of Section 8(b)(1)(A) of the Act.
As the Administrative Law Judge found, the rec-
ord shows that for 30 years Respondent and the Em-
ployer, Bell of Pennsylvania, have been parties to
successive collective-bargaining agreements which,
until the current contract was executed in July 1974,
made no provision for union security. In mid-1974
the parties executed a new 3-year contract containing
a "Modified Agency Shop Clause" which provides in
pertinent part that:
Effective January 1, 1976, all employees . ,
shall become members of the [Respondent] or
pay or tender to the [Respondent] amounts
equal to periodic dues as a condition of employ-
ment . . . .
Paul Shaffer has been a unit employee since 1953
and he was also a voluntary member of the Respon-
dent Union for several years. However, in 1960 Shaf-
fer was expelled from the Respondent, apparently for
refusing to join in a work stoppage which the Union
had sanctioned. There is no indication from the rec-
ord that Shaffer's expulsion from the Union in any
way affected his employment status and, at the pres-
ent time, he is still employed in the bargaining unit.
Shaffer first learned of the agency shop clause by
reading a newsletter prepared by the Employer short-
ly after the new contract was executed. Shaffer also
427
discussed the new clause with his immediate supervi-
sor. It appears that Shaffer was interested in regain-
ing his union membership sometime after the new
contract was executed but before the agency shop
clause went into effect.
Toward that end, Shaffer contacted the Respon-
dent's agent, Alfred Arnal, and, in May 1975, Arnal
informed Shaffer that:
The requirements for membership were the
same as they had always been, which was a pay-
ment of all back dues to 1960 plus any fines and
assessments due and that other than that, I
[Shaffer] would be required to tender the Union
dues in January of 1976 whether I was or was
not a member, but these were the requirements
for becoming a member.
Based on the forgoing testimony, the Administra-
tive Law Judge found that the Respondent had erect-
ed an "illegal barrier" to Shaffer's obtaining mem-
bership under the agency shop provision by
requiring, as a condition of membership under the
agency shop clause, that Shaffer pay back dues for a
period when he was under no obligation to pay dues
as a condition of employment. We agree with the
Administrative Law Judge that a union may not at-
tach, as a condition for readmission to membership
under an agency shop clause, the payment of dues
which accumulated after an applicant's expulsion
from the Union) As noted by the Administrative
Law Judge and as stated by the Board in Simmons
Company:'
It is well settled that an employee may not be
required to pay back dues for a period when
membership was not validly required as a condi-
tion of employment.
However, for the following reasons, we do not agree
that in the circumstances of this case the evidence
preponderates toward a finding that the Respondent
threatened to impose illegal conditions on Shaffer's
option to become a member of the Respondent un-
der the agency shop provision.
At the outset, it is clear that the Administrative
Law Judge's conclusion that the Respondent violated
Section 8(b)(1)(A) is bottomed on an assumption
1 We note that there is no question here involving an attempt by the
Respondent to collect any dues, fines, or assessments (or a reinstatement fee
in lieu thereof) due and owing prior to Shaffer's expulsion from membership
in the Respondent In Simmons Company, 150 NLRB 709 (1964), the Board
permitted a union to require under Sec 8(b)(1)(A) that a member, who was
not in "good standing" with the union but sought to retain her employment,
select from regaining "good standing" by paying back dues (which accumu-
lated while the member was on a leave of absence but still in the union),
regaining "good standing" by paying a reinstatement fee, or leaving the
union but paying the agency fee
2 Supra at 712
226 NLRB No. 74
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the requirement that Shaffer pay back dues, as-
sessments , and fines was to apply after January 1,
1976, the effective date of the agency shop clause
However, in reaching this result, the Administrative
Law Judge apparently relied on only the May 1975
conversation, quoted above, and failed to consider
testimony regarding two subsequent conversations
between Shaffer and Arnal. Thus, in late September
1975, Shaffer again approached Arnal, and as Shaf-
fer testified: "I demanded Union membership of him
feeling that perhaps he had not understood my earli-
er position." And, Shaffer testified, during a conver-
sation on October 3 he and Arnal reviewed the
"terms which were required at that time for that 'par-
ticular time'] for membership."
In our view, these three conversations, taken as a
whole, strongly suggest that Shaffer was inquiring
about obtaining union membership before January
1976. Thus, Shaffer admittedly emphasized that he
was "demanding" membership and was concerned
about the terms which were required "at that particu-
lar time" (i.e., in May, September, and October,
1975). In these circumstances, it is not at all clear
whether Arnal considered Shaffer's present demands
for immediate membership in the context of what
would be required of Shaffer after January 1976.
Rather, despite the conversations having been initiat-
ed by Shaffer's learning of the later-to-be-implement-
ed agency shop clause, it appears probable, based on
the evidence, that Arnal was discussing in May, Sep-
tember, and October with Shaffer the then current
requirements.
Accordingly, we are unwilling to infer that Arnal
made any threats to Shaffer concerning what would
be required of him in January 1976.3 Based on this
record, we cannot find that the General Counsel has
shown by a preponderance of the evidence that the
Respondent threatened to condition Shaffer's op-
tional rights of membership under the agency shop
clause on the payment of any back dues, fines, or
assessments that accumulated after Shaffer's prior
expulsion from the Respondent. We shall therefore
dismiss the complaint in its entirety.
ORDER
DECISION
STATEMENT OF THE CASE
ROBERT COHN, Administrative Law Judge- This case,
heard at Pittsburgh, Pennsylvania, on October 14, 1975,1
pursuant to a complaint and notice of hearing dated Au-
gust 29 (based on an original charge filed on June 18),
presents the question whether Federation of Telephone
Workers of Pennsylvania (herein the Respondent or
Union) violated Section 8(b)(1)(A) of the National Labor
Relations Act, as amended (herein the Act), when, in April
or May, an agent of Respondent illegally threatened that
Paul A. Shaffer, an individual (herein the Charging Party),
an employee of Bell of Pennsylvania, would have to pay or
tender to Respondent certain fines or dues for a period of
time when he was not required to be a member of Respon-
dent, as more fully appears hereinafter. Respondent's an-
swer, while admitting the jurisdictional allegations of the
complaint, denied that it had engaged in any unfair labor
practices.
At the hearing, all parties were given full opportunity to
present evidence, to examine and cross-examine the wit-
nesses, to offer oral argument, and to file briefs. Oral argu-
ment was waived, but helpful, posthearing briefs have been
filed by counsel for the General Counsel and by counsel
for the Respondent, which have been duly considered
Upon the entire record in the case, including my obser-
vation of the demeanor of the witnesses, and a consider-
ation of the arguments of counsel, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The complaint alleges, the answer admits, and I find that
at all times material Bell of Pennsylvania (herein the Em-
ployer) is a Pennsylvania corporation engaged as a public
utility in providing telephone communications and related
services During the 12-month period preceding the is-
suance of the complaint herein, which period is representa-
tive of its business operations, the Employer had gross rev-
enues in excess of $500,000, and received goods and
materials valued in excess of $50,000, for use at its Pennsyl-
vania places of business, directly from points outside the
Commonwealth of Pennsylvania.
I find that the Employer's operations affect commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint here-
in be, and it hereby is, dismissed in its entirety.
i As the hearing in this case took place in October 1975, there is, of
course , no evidence as to what requirements , if any, the Respondent at-
tempted to enforce on and after January I. 1976
If. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
at all times material the Respondent is, and has been, a
labor organization within the meaning of Section 2(5) of
the Act.
All dates hereinafter refer to the calendar year 1975, unless otherwise
indicated
FEDERATION OF TELEPHONE WORKERS 429
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The facts giving rise to the issue in this case are not
essentially in dispute and may be briefly stated as follows.
The Charging Party commenced his employment with
the Employer in 1953 as a switchman in the Employer's
plant department. At all times material, the employees of
this department have been represented by the Respondent
for purposes of collective bargaining with the Employer. A
few years later, the Charging Party voluntarily joined the
Respondent. There was no union-security provision in the
contract between the Employer and the Respondent at that
time.
During 1960, a labor dispute arose between the Employ-
er and the Respondent which resulted in a work stoppage.
The Charging Party was unsympathetic with the Respon-
dent's position during the work stoppage and sought to
resign his membership. However, the Respondent appar-
ently refused to accept his resignation and later expelled
him for working during the work stoppage. Nevertheless,
the Charging Party's employment with the Employer was
not affected, and his status as an employee has continued
up until and during the hearing in this case. Since he has
not been a member of the Union since 1960, he has not
paid any membership dues to that organization since that
time.
On or about July 28, 1974, the Respondent and the Em-
ployer executed the current collective-bargaining agree-
ment covering the unit which included the plant depart-
ment employees. This agreement, for the first time in the
history of the collective-bargaining relationship between
the Employer and the Respondent, contained a union-se-
curity clause denominated in the record as a "Modified
Agency Shop Clause," as follows:
24.03-Effective January 1, 1976, all employees except
occasional employees shall ,become members of the
Union or pay or tender to the Union amounts equal
to periodic dues as a condition of employment ex-
cept that this condition shall not apply to employees
who are hired or who enter the bargaining unit after
December 1, 1975, until on'or after the thirtieth day
after such hire or entrance, whichever of these dates
is later until the termination of this contract.2
In August or September 1974, the Employer circulated
information to the employees notifying them of the
changes in the collective-bargaining agreement. Shortly
thereafter, the Charging Party discussed these matters with
his immediate supervisor, who told him that "as of January
1, 1976, [the Charging Party] would tender dues to the
Company (sic) or [the Charging Party] would no longer be
employed by the Company." 3 Following this conversation
with his supervisor, the Charging Party went to the Re-
2 G.C. Exh. 3.
3 Testimony of Shaffer. The supervisor was not called as a witness at the
hearing, and therefore the statements attributed to him by Shaffer constitute
only hearsay evidence as respects the Respondent. Upon objection of the
Respondent, I allowed the testimony to remain on the record but not for the
purpose of establishing the truth of the matter asserted.
spondent's "branch representative," one Alfred J. Arnal,
and asked him whether, in view of the changes in the con-
tract, the Union intended to make any changes in their
conditions of membership. Arnal replied that he would
have to check with someone higher in the Union, and
would get back to Shaffer. About 6 months later, in April
or May, Arnal orally responded to Shaffer's request for
information as follows:
After a period of approximately six months, in April
or May of 1975, he came back with the answer that the
requirements for membership were the same as they
had always been, which was a payment of all back
dues to 1960 plus any fines and assessments due and
that other, than that; I would be required to tender the
union dues in-January of 1976 whether I was or was
not a member, but these were the requirements for
becoming a member.'
B. Analysis and Concluding Findings
In Simmons Company,5 the Board stated:
It is well settled that an employee may not be re-
quired to pay back dues for a period when member-
ship was not validly required as a condition of em-
ployment.'
There can be no question that in the conversation be-
tween Shaffer and Arnal in the spring of 1975, the latter
conveyed the information that if the Charging Party con-
templated and desired to regain membership in the
Union-from which he was expelled in, 1960-he would
have to pay the fine and back dues which had accumulated
during that period of time. Thus it is clear that the Union
was requiring as a condition of membership the payment
of back dues for a period when membership was not val-
idly required as a condition of employment. It seems equal-
ly clear that had the Union and the Employer agreed on a
union-security clause which made membership in the
Union a condition of employment, and, the Union insisted
on the payment of the Charging Party's back dues as a
condition of membership (and therefore a condition of em-
ployment), a violation of Section 8(b)(1)(A) would have
occurred.'
The critical question remains whether, under the stated
facts, a violation occurs where the Union and Employer
have agreed upon a lesser form of union security, i,e., a
so-called agency shop, where the, employee is not required
to become a member of the Union as a condition of em-
ployment so long as he tenders the dues and fees normally
required of members. At first blush, one might reason that
no violation of the Act occurred because the Union's de-
mand for back dues in order to attain membership was
protected by the proviso to Section 8(b)(1)(A),8 since it left
4 Testimony of Shaffer. Arnal testified that on this occasion he told Shaf-
fer the information that he (Arnal) "got from the division office of what, of
his fines and his back dues to become an active member."
5 150 NLRB 709, 712 (1964)
6 See also Namm's, Inc, 102 NLRB 466, 467-468 (1953)
7 Namm's, Inc, supra
s This section of the Act provides that "It shall be an unfair labor prac-
tice for a labor organization or its agents to restrain or coerce employees in
Continued
430 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD
the Charging Party's employment intact as long as he ten-
dered the normal dues and fees required of members. This
accords with the congressional concern "for protecting the
individual employee in a right to refrain from union activi-
ties and to keep his job even in a union shop." I But avail-
able precedent indicates that, even under an agency shop,
the employees must be accorded the option of becoming a
member of the union, and that the union violates the Act
when it places an illegal barrier to this option.
Thus in Local 1104, Communications Workers of America,
AFL-CIO (New York Telephone Company),10 the Board
and court decided that where an employee is denied mem-
bership in a union because of his engagement in protected
activity, an agency shop clause cannot be enforced against
him. The Communications Workers case actually involved
two groups of employees. The first was a group of "strike-
breakers" who applied for membership in the union follow-
ing a strike and the union denied their applications solely
because they had not participated in the strike. The em-
ployees then refused to tender amounts equivalent to union
dues under the agency shop provision; whereupon, the
union demanded their discharge. The Board and the court
held that the strike itself was unlawful under the Act, and
the union was not privileged to rely on the proviso to Sec-
tion 8(b)(1)(A) where its rules frustrate national labor poli-
cy. It was therefore held that the union's conduct violated
Section 8(b)(1)(A) and (b)(2) of the Act.
More analogous to the case at bar is the second category
considered in Cummunications Workers-the so-called Rig-
by case. Rigby, an employee of the employer, honored the
union's picket lines during the strike, but engaged in orga-
nizational activities on behalf of a rival union soon after
the strike's end. His efforts proved unsuccessful, and he
thereafter applied for membership in the Communications
Workers union. The latter denied his application because
of his activities on behalf of the rival union; whereupon,
Rigby refused to tender any more dues, and the union at-
tempted to invoke the agency shop clause to obtain his
discharge. The court of appeals, in upholding the Board's
decision, noted the discussion of the agency shop by the
Supreme Court in N.L R.B. v. General Motors Corporation,
373 U.S. 734 (1963`), wherein the Court upheld the legality
of such provision under the Act. The court of appeals inter-
preted the Supreme -Court's understanding of what an
agency shop entails; as follows: "'[It] places the option of
membership in the employee while still requiring the same
monetary support as does the union shop. 373 U.S. 734 at
744'." The court went on to state:
If the locals prevail here, they will have arrogated to
themselves the employees' choice regarding union
membership while nonetheless requiring them to pay
dues. A union should not, under the circumstances
here presented, be entitled to exact dues from employ-
ees after depriving them of their membership options
the exercise of the nghts guaranteed in section 7 Provided, That this para-
graph shall not impair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of membership therein."
9 See Union Starch & Refining Company, 87 NLRB 779, 784 (1949)
10 211NLRB 114 (1974), enfd. 520 F 2d 411 (C A 2, 1975), cert denied
423 US 1051 (1976).
by excluding them from its ranks. This conclusion fol-
lows rather easily in the Telco case, where the exclu-
sion itself was unlawful; the Rigby case, where the
exclusion was apparently proper, is more difficult, but
in the light of the considerations, set forth in the previ-
ous paragraph we see no reason for reaching a differ-
ent decision. 11
In the case at bar, as in the Rigby case above, the Union
seeks to deprive the employee of membership status be-
cause that employee engaged in protected activity under
Section 7 of the Act. In the Rigby case, the protected activ-
ity was soliciting for a rival union; here, the protected ac-
tivity was refraining from financial support of the Respon-
dent at a time when the Respondent was not legally
entitled to exact such support. In either case, the union was
not entitled to arrogate to itself the employee's option un-
der the agency shop even though it could not legally cause
his discharge of he tendered the normal dues and fees.12
Arnal's statement to the Charging Party threatened that
the latter would either have to pay back union dues for a
period of time when he was not legally, obligated to do so,
or pay the equivalent of union dues commencing in Janu-
ary 1976; without according him the rights of membership
on the same 'terms as accorded all other employees. This
option the Union was not legally privileged to offer.13
The Respondent here seeks to further distinguish the
Cummunications Workers case by noting that there has
been no attempt at enforcement of the agency shop provi-
sion as of the time of the complaint or hearing herein-
noting that the contract itself provides that the agency
shop does not become effective until January 1, 1976.
However, it is well settled that "a union may not lawfully
threaten to do what it would be unlawful for it to do." 14
However the Respondent further argues that Arnal was
not an agent of the Respondent at the time the alleged
threat to the Charging Party was made., I cannot agree with
such contention. The record is clear that at all times mate-
rial Arnal was the branch representative of Local No. 44 of
the Respondent. As such, he represented the Union at
grievance discussions.15 The constitution of the Respon-
' dent obligates the branch representative to "Represent the
interest of the Union membership in his Branch [and] .. .
[c]onduct at least four meetings of the Branch Membership
each year [and] . . . [u]nless otherwise excused, attend all
meetings of his branch, Local, Division or Executive Board
when his attendance is required [and] ... [s]ign and sub-
scribe to an oath of office ...." 16
520 F.2d at 419
12 The Simmons case, supra, relied on by the Union, is distinguishable
There, the Board found that "both [the employee] and the Union viewed
_[the employee] as a member of the Union at all times " The question in-
volved in that case was the alternatives posed by the union in order to
enable the employee to achieve "good standing," and the union offered her
two alternatives Here, the Charging Party had been expelled from the
Union for some 14 years, and the question was not how to achieve "good
standing," but how to regain membership
13 Communications Workers, supra
14 The Eclipse Lumber Company, Inc, 95 NLRB 464, 473 (1951)
s See G C Exh. 6 which is entitled "Joint Conference Between the Bell
Telephone Company of Pennsylvania and The Federation of Telephone
Workers of Pennsylvania-Southern District-Operations Department-
Plant Western Area"
16 See G C. Exh 4, art 4
FEDERATION OF TELEPHONE WORKERS
In addition, a "representative of the Union" is defined in
the collective-bargaining agreement as "one of the repre-
sentatives of the Union elected pursuant to the Union's
constitution or any higher ranking union official" (sec.
1.05). The record shows that on February 14, 1973, the
Respondent notified the employer's personnel supervisor
that Arnal had been elected for a period of 3 years as one
of the branch representatives of Local No. 44 of the Re-
spondent.
Finally, as relates to the circumstances in this case, Ar-
nal was specifically designated as an agent of the Respon-
dent to relay the information concerning the back dues and
fines to Shaffer. As Arnal testified: "I told him the infor-
mation I got from the division-office of his fines and back
dues to become an active member."
Based on all of the foregoing, I conclude and find that at
all times material Arnal was'an agent of the Respondent,
and therefore Respondent was responsible for the state-
ments he made to the Charging Party on the occasions
presented.
I conclude and find, based on substantial evidence in the
record, that by the statements made by Arnal to the Charg-
ing Party in April or May, the Respondent restrained and
coerced the Charging Party with respect, to his Section 7
rights, and therefore violated Section 8(b)(l)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth above, occur-
ring in connection with the interstate operations of the em-
ployer, have a close, intimate, and substantial relationship
431
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices proscribed by Section 8(b)(1)(A) of the Act,
I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
CONCLUSIONS OF LAW
1. The Bell Telephone Company of Pennsylvania is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Federation of Telephone Workers of Pennsylvania,
Respondent herein, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening employees with the requirement that
they pay amounts equivalent to union dues, while simulta-
neously denying membership to them unless they paid
back dues or fines to the,Respondent for a period of time
when they were not legally obligated to do so, Respondent
restrained and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act, thereby engaging in
unfair labor practices within the meaning 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.
[Recommended Order omitted from publication.]