Local 6222, Communications Workers

National Labor Relations Board - Board Decisions

Dec 4, 1972

200 N.L.R.B. 732 (N.L.R.B. 1972)

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Communications Workers of America, AFL-CIO,
Local 6222 (Southwestern Bell Telephone Compa-
ny) and Ben Bateman, Joseph A Thompson, and
Eddie Jordan Cases 23-CB-1212, 23-CB-1212-2,
and 23-CB-1212-3
December 4, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On March 28, 1972, Administrative Law Judge'
Melvin J Welles issued the attached Decision in this
proceeding Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent
filed a brief in support of the Administrative Law
Judge's Decision
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
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
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 Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety
1 The title of Trial Examiner was changed to Administrative Law
Judge effective August 19, 1972
TRIAL EXAMINER'S DECISION
STATEMENT Op THE CASE
MELVIN J WELLES, Trial Examiner This case was heard
at Houston, Texas, on January 31, 1972, based on charges
filed August 20, 25, and 31, 1971, and a complaint issued
December 16, 1971 The complaint alleges that Respon-
dent violated Section 8(b)(1)(A) of the Act Respondent
filed an answer denying that it violated the Act Counsel
for the General Counsel and for the Respondent filed
briefs
Upon the entire record in the case, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER AND THE LABOR
ORGANIZATION INVOLVED
Southwestern Bell Telephone Company, herein called
the Company, is a Missouri corporation engaged in the
business of transmitting and receiving telephone messages
in and among several States in the southwestern portion of
the United States , including the State of Texas , where it
maintains a Houston area office in Houston, Texas
During the past 12 months it has received revenues in
excess of $ 100,000 for services performed of the nature
described above I find that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
Respondent, Communications Workers of America,
AFL-CIO, Local 6222, herein called the Union or
Respondent, is a labor organization within the meaning of
Section 2(5) of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A The Agreed Facts and the Issue
The facts in this case are not in dispute, as Respondent
Union admitted the factual allegations of the complaint
and the General Counsel and the Union stipulated to
certain other facts i
On July 14, 15, and 16, Edwin W Pawlak, an agent of
Respondent,2 directed Ben Bateman, Joseph A Thomp-
son, and Eddie Jordan, all employees of the Company, to
wear upon their person, while working, a union authorized
emblem bearing the legend "Ma Bell is a cheap mother "
These three members viewed the legend as "morally
repugnant and personally offensive," so notified Pawlak,
and refused his directive to wear the emblem containing
that language On August 8, 1971, Pawlak filed charges
against the three employees with the Union's secretary-
treasurer, and on August 13, 1971, the three members were
notified by the Union that internal union charges had been
filed against them because they refused to wear the union
authorized emblem
The parties further stipulated that the slogan itself was
disseminated nationally by news media, particularly
television broadcasts, newspaper articles, and radio re-
ports It was further stipulated that other members of the
Union, union officers, and a cross section of the public
generally do not individually or personally find the slogan
to be offensive
By the institution of the charges by Pawlak and the
notification to the three members of the filing of the
charges by the Union's secretary-treasurer, Respondent
Union is alleged to have violated Section 8(b)(1) of the Act
The General Counsel contends that union members have a
protected right, even as against internal union discipline, to
refuse to follow a policy which they view (reasonably) as
"morally repugnant" and "personally offensive " Respon-
dent Union, of course, claims that internal union discipline
1 Neither the admission nor the stipulations carry with them any
concession as to relevance or as to the ultimate question with respect to
whether Respondent violated Sec 8(b)(1)(A) of the Act
2 He is district steward west central district, West Houston Division of
Respondent Union
200 NLRB No 109
LOCAL 6222, COMMUNICATIONS WORKERS 733
is, in the circumstances of this case, outside the scope of
Section 8(b)(1)(A), that in no event can the personal views
of individual union members subject the Union to a
violation that would not be a violation without such
personal views
B Discussion and Conclusions
It goes without saying, of course , that union members (or
nonmembers) have a right to refrain from engaging in
union activities , as Section 7 of the Act makes clear The
"right" includes refusing to follow a union policy of
wearing particular emblems just as much as it applies to
refusing to honor a union's picket line , refusing to strike,
etc We start then with the conceded , as it must be , right of
the Charging Parties in this case to refuse Pawlak's
directive to wear the emblem Establishing the right under
Section 7 , however , only begins the inquiry , for as the
Supreme Court held in N L R B v Allis Chalmers Mfg Co,
388 U S 175, in normal circumstances , internal union
disciplinary action is not coercion within the meaning of
Section 8(b)(1)(A) even though taken against a member for
exercising a Section 7 right The Supreme Court has also
held, however, agreeing with the Board , that the "overrid-
ing public interest" in permitting free access to the Board
made internal union disciplinary action penalizing a
member for filing charges with the Board a violation of
Section 8 (b)(1)(A) notwithstanding the general exemption
of such discipline from 8(b)(1)(A)'s proscriptions N L R B
v Industrial Union of Marine and Shipbuilding Workers of
America, 391 U S 418 The Board has subsequently held
that internal union discipline against a member who
refused to join a union-sponsored strike was violative of
Section 8(b)(1)(A) when the agreement between the union
and the company contained a no-strike clause Glaziers'
Local 1162, a/w The Brotherhood of Painters, Decorators,
Paperhangers, Glaziers and Glassworkers of America,
AFL-CIO (Tusco Glass, Inc), 177 NLRB 393, 397-399,
National Grinding Wheel Company, Inc, 176 NLRB No 89
The question in the instant case then is whether there is
an overriding public policy protecting union members who
view participation in particular union-sponsored activity as
"morally repugnant and personally offensive " against
internal union discipline Stated otherwise , whether there is
a violation in this case seems to turn on whether the
situation is analogous to that in Allis Chalmers or to that in
National Grinding Wheel and Glaziers
The Supreme Court in Scofield explicated the test to be
applied in determining whether or not Section 8(b)(1)(A)
applies to internal union discipline in varying situations
Referring to its own decisions in Allis Chalmers and Marine
3 The last portion of the quote presents no problem here Although the
record is silent on the matter I take official notice of the fact that Texas is a
right to work state and hence membership in the Union was completely
voluntary rather than a condition of employment
4 When asked whether he would still be claiming that there was a
violation of Sec 8(b)(1)(A) had the slogan read for example, Bell does not
pay its employees enough money the General Counsel responded No I
would not In other words, it s my position that these individuals reasonably
viewed this slogan as being personally offensive and morally repugnant and
I in hanging my case on that I assume that a member s viewing this
hypothetical slogan as morally repugnant and personally offensive would
not alter the General Counsel s position, for that view would probably not
Shipbuilders, the Court stated (394 U S at 430) "Under this
dual approach, Section 8(b)(1) leaves a union free to
enforce a properly adopted rule which reflects a legitimate
union interest, impairs no policy Congress has imbedded in
the labor laws, and is reasonably enforced against union
members who are free to leave the union and escape the
rule "3 The Court went on to conclude in Scofield (id at
436) "The union rule here left the collective-bargaining
process unimpaired, breached no collective contract,
required no pay for unperformed services , induced no
discrimination by the employer against any class of
employees, and represents no dereliction by the union of
its duty to fair representation In light of this, and the
acceptable manner in which the rule was enforced,
vindicating a legitimate union interest, it is impossible to
say that it contravened any policy of the Act "
The General Counsel in this case specifically confines his
claim of a violation to the Charging Parties' "view" that
wearing the emblem in question was "morally repugnant
and personally offensive " The General Counsel indeed
specifically disavowed any contention that the Union
would have violated Section 8(b)(1)(A) had the refusal not
been based on the Charging Parties' view to that effect 4
I think it would be helpful to discuss the legal issue here,
initially at least, without regard to the General Counsel's
theory of the case It could be argued, for example, that a
union violates Section 8(b)(1)(A) by disciplining members
for refusing to engage in conduct which if engaged in
would itself not be protected against employer discipline
The National Grinding Wheel and Glaziers cases, supra,
were both cases in which, had the employees involved
engaged in the strike called by their union, they would
have been unprotected, their employer could have dis-
charged or otherwise disciplined them for striking in
violation of a no-strike clause Significantly, however, in
neither of those cases did the Board predicate its finding of
an 8(b)(1)(A) violation on the unprotected nature of the
strike that the members were requested to join, but rather
on the "public policy in favor of enforcement of collective
bargaining agreements overrid[ing] and outweigh[ing] the
union's right to discipline its members " I also read
Justice Brennan's opinion for the Supreme Court in
Scofield as supporting the proposition that internal union
discipline is not violative of Section 8(b)(1)(A) merely
because it is imposed on a member for refusing to engage
in an unprotected activity Thus, in discussing the situation
in Scofield and that in the earlier Allis Chalmers case, the
Court pointed out that "there [in Allis Chalmers] the
member could be replaced for his refusal to report to work
during the strike, here [in Scofield] he need simply limit his
production and suffer whatever consequences that conduct
be regarded as reasonable The complaint would so indicate as it states
that the Charging Parties reasonably regarded the slogan in the way that
they did In the light of the complaint s recital of the fact that the Charging
Parties notified the union agent Pawlak of their objection and the basis
therefor I assume that such notification is also essential to the General
Counsels position in this case Perhaps this latter element would not be
viewed as an essential element in the case where the slogan involved was
manifestly obscene or repugnant to almost everyone (thresholds of
sensitivity vary so widely that it would be impossible to think of a slogan
that would be offensive to everyone) so that the reason would be apparent
without notification or a contemporaneous statement of it That is clearly
not the situation here as will become obvious in my discussion below
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may entail " [Emphasis supplied ] Plainly these "conse-
quences" included whatever discipline the Employer might
visit on the employee for refusing to meet his production
quota For these reasons, I could not conclude that a
violation would be made out if it were shown that the
Employer could discharge or discipline an employee for
complying with the Union's request 5 In so "concluding," I
am not rejecting the contention of the General Counsel,
for, as indicated, that contention is not advanced
Neither the stipulated facts nor the slogan on its face
seems to be "morally repugnant" or "personally offensive"
to the point that almost anyone would so view it Granted
that what to me may be innocuous and inoffensive may be
to some others, or even most others, quite the contrary, I
am in this case, at least, reinforced in my view by the
stipulation that other members of the Union, union
officers, and a cross section of the community would not
find the slogan to be offensive, and the further stipulation
that the slogan was disseminated nationally by the various
news media
Without belaboring the point, I am willing to assume
that the Charging Parties' belief was at least not so
unreasonable as to be frivolous, which perhaps transmutes
into "reasonable," and to resolve this case on that
assumption That assumption is the framework in which
the General Counsel pregents this case, and from which he
contends that a violation of Section 8(b)(1)(A) should be
found
I am constrained to disagree Clearly, none of the
decided cases finding internal union discipline violative of
Section 8(b)(1)(A) compels a similar conclusion here, for
they involved access to the Board, or a breach of the
union's own collective-bargaining agreement, a far cry, in
my opinion, from conduct that is viewed as "morally
repugnant and personally offensive" Individual views,
even though "reasonable," hardly rise to the level of an
"overriding public policy" Were that not so, Allis
Chalmers and Scofield would have to be read as limited to
situations where the individuals fined did not have strong
moral views about striking, or not producing to their fullest
capacity, both of which are views probably shared by
enough people (although perhaps a minority) so as to
qualify as "reasonable " We are not dealing here with
questions of "free speech," or "civil liberties", we are
dealing with the narrow question of whether internal union
discipline violates Section 8(b)(1)(A) despite the normal
exemption from that section of such discipline I cannot
find, consonant with the principles of the Board and
Supreme Court cases, that a violation has been, or could
be, established predicated on reasonable views that the
conduct in question is morally repugnant and personally
offensive
Even treating the case as one in which the slogan was
manifestly "morally repugnant and personally offensive"
would not change my result Voluntary members can leave
the Union, oust a leadership that directs such conduct,
and, indeed, since a "manifestly obnoxious" slogan would
be so characterized only if most people thought of it that
way, and most people includes union members, those
remedies would inevitably flow from the universal charac-
terization Thus, the remedy in that situation seems to me
to lie not with the Labor Board, but within the Union itself
For all of these reasons, I shall recommend that the
complaint herein be dismissed
CONCLUSION OF LAW
The evidence does not establish that Respondent
engaged in the unfair labor practices alleged in the
complaint
Upon the foregoing findings of fact, conclusion of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER
The complaint is dismissed in its entirety
5 Consequently I do not decide whether wearing of the slogan here or U S 464) demonstrates that there are lines to be drawn and that wearing of
any slogan would be protected concerted activity, although the teaching of certain types of slogans would not be protected against employer
the Jefferson Standard case (N L R B v Local Union No 1229 IBEW, 346 discipline