Southwestern Bell Telephone Co.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1053 (N.L.R.B. 1985)

SOUTHWESTERN BELL TELEPHONE CO.
Southwestern Bell Telephone Company and Commu-
nications Workers of America , Local 12222,
AFL-CIO. Cases 23-CA-9476-1 and 23-CA-
9476-3
30 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 12 July 1984 Administrative Law Judge
Leonard M. Wagman issued the attached decision.
The Respondent filed exceptions and a supporting
brief, the Charging Party filed a brief in support of
the judge's decision, and the General Counsel filed
a brief in support of the judge's decision and an an-
swering brief to the Respondent's exceptions.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions2 and to adopt the recommended
Order.
' The Respondent excepts to the judge's finding that the Respondent
untimely raised the issue of deferral to the grievance and arbitration
mechanism of the parties ' collective-bargaining agreement We find no
meet to this contention because the Respondent has not affirmatively
agreed , either at the hearing or in its exceptions , to waive any timeliness
provisions of its grievance-arbitration clause or, indeed, to arbitrate this
dispute at all See United Technologies Corp, 268 NLRB 557, 560 fn 2
(1984), Garland Distributing Co, 234 NLRB 1275, 1280 (1978)
The Respondent has requested oral argument The request is denied as
the record , exceptions , and briefs adequately present the issues and the
positions of the parties
2 Our dissenting colleague argues that "special circumstances" privi-
leged the Respondent 's removal of the "Definition of a Scab" from the
Union's bulletin boards The Respondent alleges that the notice was dis-
ruptive but cites only evidence that the employees were "milling around"
or "talking in huddles" instead of working independently at their stations
as they normally did Their supervisors , however, did not tell the em-
ployees to go back to work We cannot conclude that this "unusual" em-
ployee behavior reasonably signaled a serious threat to discipline. espe-
cially without some indication that the Respondent asked employees to
return to their seats See Portage Plastics Co, 163 NLRB 753, 759 (1967)
The supervisors who were responsible for the removal of the notices also
toed to justify their actions on the basis that they had each been told by
a single employee that there was something distasteful on the bulletin
board An employer , however, does not prove "special circumstances"
merely by reference to the sensibilities of one or two employees
Our dissenting colleague presumes animosity between employees aris-
ing from the decision of a number of employees to cross the picket line
during the recent strike in finding that a notice critical of the nonstrikers
was likely to provoke a confrontation , citing United Aircraft Corp, 134
NLRB 1632 (1961) United Aircraft is distinguishable, as there, unlike
here, the strike was accompanied by mass picketing and violence prompt-
ing the General Counsel to obtain a 10(j) injunction Nor can we, as the
dissent does , equate maintaining a notice on a bulletin board with wear-
ing a pin bearing a slogan, the danger o_f "confrontation" in the two situa-
tions is entirely different
We also find Southwestern Bell Telephone Co., 200 NLRB 667 (1972),
cited by the judge, to be distinguishable . There , unlike here , the slogan at
issue could be construed , and was construed , as obscene
1053
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Southwest-
ern Bell Telephone Company, Houston, Texas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order. `
CHAIRMAN DOTSON, dissenting.
The judge concluded that the Respondent violat-
ed Section 8(a)(1) of the Act by removing Jack
London's "Definition of a Scab" from two union
bulletin boards, by informing an employee it had
removed the notice, and by threatening to disci-
pline the same employee if she reposted it and an-
other employee if he refused to remove it. The Re-
spondent argues that under the circumstances its ef-
forts to ensure that the notice was removed and
was not reposted were not unfair labor practices. I
agree.
It is well established that unions have no statuto-
ry right to post notices on an employer's premises.
See Container Corp. of America, 244 NLRB 318 fn.
2 (1979). The Act protects such posting of union
notices to the extent that where, as here, an em-
ployer allows a union unrestrained access to its bul-
letin boards for the posting of notices, the employ-
er violates Section 8(a)(1) if it removes a notice it
merely finds distasteful. E.g., Tempco Mfg. Co., 177
NLRB 336, 342 fn. 20, 348 (1969); Container Corp.
of America, supra.
The Supreme Court has recognized, however,
that employers have an "undisputed right . . . to
maintain discipline in their, establishments" which
under some circumstances may limit the exercise of
the employee rights guaranteed by Section ' 7. Re-
public Aviation Corp.' v. NLRB, 324 U.S. 793, 797-
798 (1945). Accordingly, the Board has found "spe-
cial circumstances" to exist privileging an employ-
er's ban on otherwise protected activity in the
workplace where objective evidence supports the
employer's 'belief that the ban was necessary to
maintain decorum and discipline among its employ-
ees. Midstate Telephone Corp., 262 NLRB 1291,
1292 (1982). I find that the Respondent has urged
facts in its exceptions and brief that are supported
by the record and constitute "special circum-
stances" , privileging . its response to the posting of
the "Definition of,a Scab."
In United Aircraft Corp., 134 NLRB 1632 (1961),
an employer, in an effort to promote harmony in
its plant, banned the wearing 'of "Club 9" pins sig-
nifying that the wearer had stayed away from
work for the entire 9 weeks of a recent, embittered
strike during which two-thirds of the employees
eventually crossed the picket line. The Board con-
276 NLRB No. 110
1054 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD
cluded that the ban on the pins and the suspension
of an employee until ,he agreed not to wear one did
not violate Section 8(a)(1) because the circum-
stances of the strike rendered entirely reasonable
the employer's apprehension that the pins would
promote disorder and engender further divisiveness
between strikers and nonstrikers: Id. at 1634-35.
Here, also, the employees of the departments in
which the "Definition of a Scab" was posted and
removed had recently gone out on strike, and be-
tween one-third and one-half of these employees
had crossed the picket. line. That this would cause
animosity, between strikers and nonstrikers is- a
well-known - fact of labor-management relations.
United. Aircraft, 134-,NLRB at 1639. The "Defini-
tion of a Scab" was .posted- at both locations within
a few days -of the- end of the strike, allowing little
time for ill will to dissipate.
Although the Respondent' presents no evidence
that the strike here was marked by picket line vio-
lence like the strike in United Aircraft,- there'is an-
other significant circumstance present here but not
present in that case which fortifies the Respond-
ent's belief that the removal of a "Definition of a
Scab" was necessary to maintain discipline:,.Unlike
the innocuous "Club 9 pin, . the "Definition: of a
Scab" is on its face provocative and inflammatory.
In Caterpillar Tractor Co., 113 NLRB 553 (1955),
the Board held unlawful an employer's ' ban on
"Don't be a Scab" buttons worn by union members
during a membership drive because the -employer's'
fear that the buttons would be so offensive to non-
union employees .that violence or disruption of dis-
cipline could reasonably be expected to result from
their display was not,a "special circumstance". jus-
tifyin& infringement on - employee Section, 7 rights.
The Seventh Circuit denied enforcement, of the
Board 's decision, finding that the employer' s antici-
pation 'that the "Scab" button'. would prove disrup-
tive of employee, harmony and discipline - wa's fully
justified. Caterpillar Tractor Co. V. NLRB; 230 F.2d
357 (7th Cir. 1956). The 'court explained its holding
as follows:
[I]n its application to organizational activities,
the protective mantle of Section 7 is tempered
by the employer's right to exact a day's ^ work
for a day's pay and. 'to maintain discipline, and
does not reach activities which inherently
carry with them a tendency toward, or, a like-
lihood of, disturbing efficient operation oft he
employer's business . Perhaps no greater dis-
ruptive force can be found in the field of labor
relations than that. innate in the application of
the term "scab" to one employee by his fellow
workman. [Id. at 358, 359.] . -
The Board based its decision in Caterpillar Trac-
tor on its opinion that the word "scab" has more
than one meaning and when used in the context of
a membership drive was no more opprobrious than
other slogans permitted by the respondent, such as
"Don't be a Free Rider." Here, in contrast, the text
of "Definition of a Scab" leaves no doubt that the
word is meant to convey its most insulting and op-
probrious meaning . (As the text is printed in toto in
the judge's decision, it is unnecessary to repeat it
here.) It takes no more than common sense to con-
clude.that the "Definition of a Scab" was likely to
provoke confrontations between striking and non-
striking employees .and to prolong ill will between
the two groups.'
The General Counsel argues that the Respond-
ent's "business justification" defense must fail be-
cause it did not prove that actual confrontation;
disturbance, or violence occurred as a result of the
posting of the "Definition of a Scab." To the con-
trary, the Respondent was entitled to prevent the
deleterious consequences the posting might reason-
ably be expected to produce under the circum-
stances . Maryland Drydock Co. v. NLRB, 183 F.2d
538, 541 (4th Cir. 1950). It "was under no compul-
sion to wait until resentment piled up and the
storm - broke before it could suppress the threat of
disruption by exercising its right to enforce em-
ployee discipline." Southwestern Bell Telephone Co.,
200 NLRB at 671 (quoting Caterpillar Tractor Co.,
230 F.2d at 359). To conclude that "special circum-
stances" exist only where actual confrontation, or
breakdown of discipline has already occurred is not
a proper accommodation of the employer's right to
maintain discipline in its establishment . Virginia
Electric & Power Co. v. NLRB, 703 F.2d 79, 83 (4th
' That the notice was construed as offensive by employees is borne out
by the testimony of the supervisors who presided over its removal Su-
pervisor Bayarena testified that the notice was first called to his attention
by employee Chasen, who told him there was a notice on the bulletin
board that was causing animosity among the clerks Supervisor Vienneau
testified that he decided to observe the effect of the notice on the work
force on' the complaint of an employee that there was something on the
bulletin board that should not be there, and that he took steps to see that
the notice was removed only after hearing a group of employees agreeing
that it was "against God 's will" and "nobody should say those things "
Both supervisors testified that the notice caused an unusual stir among
the employees -
I find that Letter Carriers v Austin , 418 U S 264 (1974), cited by the
judge in support of his decision, is inapposite The Court 's discussion of
the "Definition of a Scab" in that case concerned whether it was action-
able as-defamation on the theory that it was a falsehood uttered knowing-
ly or with reckless disregard of the truth In Cambria Clay Products Co,
106 NLRB 267 ( 1953), cited by the Court in the course of its discussion
as establishing that the Board has held that the use of the "Definition of a
Scab" is permissible under Federal law , the Board merely rejected an em-
ployer's claim that the circulation of this "scurrilous" literature justified
its refusal to reinstate striking employees That the Board has held that
the "Definition of a Scab" is not per se unprotected because of its scurri-
lous content has no -beanng on whether it is likely to disrupt production
and discipline
SOUTHWESTERN BELL .TELEPHONE CO. 1055
Cir. 1983). Accord: R. H. Macy & Co. v. NLRB,
462 F.2d 364, 371 (5th Cir. 1972).
To summarize , I find that the provocative and
inflammatory nature of the -notice itself coupled
with its introduction into an atmosphere . of natural-„
ly strained -employee relations resulting from the
decision of • a substantial number of employees to
cross the picket line during a recent strike consti-
tutes special circumstances justifying the Respond-
ent's removal of the notice . Cf. R. H. Macy & Co.
v. NLRB, 462 F.2d at 368-369 (provocative nature
of union campaign button and atmosphere of ten-
sion between pro-,and antiunion factions substanti-
ated management 's fear that the button was likely
to cause conflict between employees).
Accordingly, I would dismiss the complaint.
John A. Ferguson, Esq., of Houston, Texas,. for the Gen-
eral Counsel.
Mark Johnson and James M. Shatto, ' Esgs., of Houston,
Texas, for the Respondent.
Robert W. Rickard, Esq., (Wheat & Rickard), of Houston,
Texas, for the Charging Party.
employees with discipline if they posted or reported
"Definition of a Scab" on the Union's bulletin boards. In
its answer, the Company denied commission of the al-
leged unfair labor practices. I heard these cases at Hous-
ton, Texas, on February 14, 1984.
On the entire record in this case, on my observation of
the witnessess, and on consideration of briefs filed by the
General Counsel, the Charging Party, and the Company,
I make the following
FINDINGS OF FACT
I. THE COMPANY 'S BUSINESS
The Company is, and has been at all times material
herein, `a Missouri corporation with its principal office
located ' in St. Louis, Missouri, 'and is a communications
common carrier providing telephone service and other
communications services in the States of Texas, Arkan-
sas, Oklahoma, Kansas, and Missouri. During the past 12
months, a representative period, the Company, in the
course and conduct of its business operations, received
revenues in excess of $100,000. The Company Admits,
and I find, that it is now, and has been at all times mate-
rial herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act
DECISION
STATEMENT OF THE CASE
LEONARD M. WAGMAN, Administrative Law Judge.
On original charges filed by the Communications Work-,
ers of America, Local 12222, AFL-CIO (the Union), in,
Cases 23-CA-9474 and 23-CA-9476-1 on September 30
and in Case 23-CA-9476-3 on October 3, 1983, and an
amended charge filed in Case 23-CA-9474 on November
2, 1983, the Regional Director of the National Labor- Re-
lations Board (the Board) for Region 23 issued an order
consolidating cases, a consolidated complaint and a
notice of hearing, dated November 7, 1983. The com-
plaint alleges that the Company, Southwestern Bell Tele-
phone Company, violated Section 8(a)(1) of.the National
Labor Relations Act by removing Jack London's "Defi-.
nition of a Scab" from the Union's bulletin boards, warn-
ing that it did not belong there, directing employees to
remove it from the Union's bulletin boards, threatening,
to enforce company rules more strictly, threatening sus-
pension of employees, and threatening two employees
with disciplinary action, all because the employees dis-
tributed, posted, and reposted Jack London's "Definition
of a Scab" on union bulletin boards located on company
premises.' As amended at- the hearing, the complaint -al-
leges that the Company violated Section 8(a)(1) of the
Act by removing "Definition of a Scab" from the
Union's bulletin boards, warning employees, that that
commentary did . not belong on the Union's bulletin
boards, and directing employees to remove that ' com-
mentary from the Union's bulletin boards and threatening
i At the hearing, I granted the General Counsel's motion to withdraw
the allegations of the complaint in Case 23-CA-9474 which alleged that
the Company violated Sec. 8(a)(1) of the Act by threatening to enforce
its rules more strictly and suspend employees who distributed copies of
"Definition of a Scab "
II. THE LABOR ORGANIZATION INVOLVED
The Company admits, and I find, that the Union is, -
and has been at all times material herein, a labor organi-
zation-within the meaning of Section 2(5) of the Act.
III. THE REQUEST FOR DEFERRAL TO ARBITRATION
AND CONTRACTUAL GRIEVANCE PROCEDURES
Citing, the Board's decision in United Technologies
Corp., 268 NLRB 557 (1984), the Company contends that
the issues raised by the. complaint are matters which
should be resolved under the grievance procedure estab-
lished in 'its contract with the. Union. The Company,
however, made no affirmative plea in its answer to the
complaint that the Board should defer these issues to ar-
bitration and did not raise the issue of deferral at the
trial. The Company waited until its brief to me to raise
deferral for the first time . I find, in accordance with es-
tablished Board policy, that the Company '•s request is un-
timely. Conval-Ohio, Inc., 202 NLRB 85, 87 (1973). Ac-
cordingly, the Company's request is denied.
IV. THE ALLEGED UNFAIR LABOR PRACTICE2
A. The Facts
On August 6, 1983,3 the collective-bargaining agree-
ment between the Company and the Union expired. Two
days later, the Union called a strike at the Company's fa-
cilities , including those at 3303 Weslayan, in Houston,
Texas. The, strike ended on August 28 with the signing
of a new 3-year agreement . The following day, employ-
ees began returning to work. During the strike, a sub-
2 Except as noted below , no issues of credibility' were - raised The es-
sential facts are not disputed
8 All dates referred to occurred in 1983.
1056 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stantial number of, bargaining unit employees at .3303
Weslayan continued to work behind the Union's picket
line.
On September 2,; the Union distributed material to its
stewards for posting on its bulletin boards at the Compa-
ny's facilities including- the following commentary by
Jack London:
DEFINITION OF A SCAB
After God finished the rattlesnake, the toad, and
the vampire, he had some awful substance left with
which he made a SCAB. A SCAB is a two-legged
animal with a corkscrew soul, a water-logged brain,
and a combination backbone made of jelly and glue.
Where others have hearts, he carves a tumor of
rotten principles. ' -
When a SCAB comes down the street men turn
their backs and angels- weep in Heaven, and the
devil shuts the gates' of Hell to keep him out. No
man has the right to SCAB, so long as there is a
pool of water,deep enough to drown his body in, or
a-rope long enough to hang his carcass with. Judas
Iscariot was a gentleman . . . compared with, a
SCAB; for betraying his master, he had the charac-
ter to hang himself-a SCAB hasn't. -
Esau sold his birthright for a mess of pottage.
Judas Iscariot sold' his Savior for thirty pieces of
silver. Ben_ edict. Arnold sold his country for a prom-
ise of a commission in the British Army. The
modern strikebreaker sells his birthright, his coun-
try, his wife, his children and his fellow men for an
unfulfilled promise from his employer, trust-or cor-
poration. - -
Esau was a traitor to himself. Judas Iscariot was
a traitor to his God. Benedict. Arnold was a traitor
.to his country-
A strikebreaker is a traitor to himself, a traitor to
his God, a traitor to his country, a_ traitor to his
family and a traitor to his class.
THERE IS NOTHING LOWER THAN A
SCAB
Union Steward Cora Duncan immediately posted "Defi-
nition of a Scab",along with another article praising the
strikers and criticizing those who worked behind the
picket line, entitled "From Bessie 's Desk," on a union
bulletin board in the computer terminal room, adjacent
to Room 1002 at the Company's 3303 Weslayan facility.
A chief steward, employee Anita Miller, left the articles
for Duncan with a note requesting that she post them.
Duncan has been responsible for posting material on
the union bulletin board in the computer terminal room
since she became the union job steward in 1982. Duncan
had previously posted campaign literature of candidates
for union office, notices of union meetings, and articles
from union newsletters. on. this bulletin board. She has.
also removed comic strips from the bulletin board. Prior
to September 2, no company supervisor had ever told
Duncan what she could or could not post on the Union's
bulletin board. Nor had any company supervisor ever re-
moved anything from this board prior to September 2.
At the hearing, I accepted a stipulation that company
counsel were not aware of any- company rules concern- -
ing the posting of literature on the Union's bulletin
boards. on the Company's premises. The testimony of the
Company's supervisors reflected the absence of any such
rules. The collective-bargaining agreements in effect
since 1980, covering the Company's employees, contain
no provisions regarding the Union's bulletin boards at
the Company's facilities.
During the afternoon of September 2, Company Su-
pervisor Joe Bayarena saw several employees near the
bulletin board, apparently reading the posted articles. He
removed the "Definition of a Scab" and deposited it in a
garbage can. Duncan noticed the article had been re-
moved, and asked Bayarena where it was. Bayarena told
her he had removed it, balled it up, and thrown it into
the garbage can.
Duncan took the sheet from the can, then got another
copy from her desk and hung it on the board. Bayarena
promptly snatched this copy down, telling Duncan "this
mess [isn't] going to hang up here." He then specifically
prohibited herfrom posting another copy' and warned
her of disciplinary action if she did 'so.4 Duncan called
Chief Steward Miller, who spoke to. Bayarena and re-
quested that he leave the literature on the bulletin board.
Bayarena told Miller that the "Definition of a Scab" had
no business, on the board and was causing animosity
among the clerks.
A half-hour later, Supervisor Linda Trevino informed
Duncan that Second Line Supervisor Ralph Cochran
wanted to see her. Cochran had a copy of "Definition of
a Scab" in his hand as he told Duncan, "We're not going
to have this mess hanging in this office," in the -presence
of Trevino and Bayarena. Cochran also warned Duncan
that Bayarena could discipline her "for insubordination."
Duncan asked to be excused and upon returning to her
desk called Miller again. -
Fifteen minutes later, Trevino told Duncan, "We
would like to see you for five minutes ." Duncan told
Trevino that she did not want to go back to Cochran's
office. 'However, she complied upon Trevino's assurance
that the return to Cochran's office' would- take only 5
minutes , long enough to receive an- apology. Cochran
then asked Duncan-to tell her side' of the incident. Coch-
ran apologized as did Bayarena for the, way Bayarena
had treated Duncan in front of the employees. Cochran
did not retract his support for Baya'rena's action in re-
moving the article and preventing its reposting.
On September 1, Union Job Steward Milton Musgrove
posted a copy of "Definition of a Scab" on a union bulle-
tin board located in a breakroom next to Rooms 208-209,
the switching control center at the Company's 3303 Wes-
layan facility. Employee Musgrove was- responsible for
posting material on this bulletin board from 1980 through
November 1983. As a matter of practice, Musgrove
posted on the same board notice' of union meetings, list-
ings of job vacancies provided by the Union, lists of-
4 Contrary to Duncan's testimony , Bayarena specifically denied men-
tioning "insubordination" in his remarks to her . However, this denial did
not cast any doubt upon the remainder of her testimony that he warned
her "If you put up another one up there , I'll get you " - ,
SOUTHWESTERN BELL TELEPHONE CO
union officers' names, announcements for an employee
charitable organization, and the campaign material of.
candidates for union office. Occasionally, Musgrove re-
moved from the board cartoons which had been posted
by employees. Prior to September 1, no supervisor had
ever told Musgrove what he could or could not post on
the union bulletin board.
"Definition of a Scab" remained, on the union bulletin
board in the switching control center breakroom' until
about 4 p.m., September 1. About that time, Company
Supervisor Wesley Vienneau directed Musgrove to
remove the "Definition of a Scab." Musgrove said he did
not wish to do as directed. Vienneau removed it as Mus-
grove watched.
The following day, before 7 a.m., "Definition of a
Scab" again appeared on the bulletin board. Company
Supervisor Thelmon (Tom) Davis summoned Musgrove
to his office at approximately 8 a.m. and told him to take
down the "Definition of a Scab" from the Union's bulle-
tin board. Musgrove protested that he did not put it up
and he should not have to take it down. Davis asked for
Musgrove's building pass and key, whereupon Musgrove
requested permission to make a telephone call. After
consulting a union district•steward, Musgrove removed
the "Definition of a Scab." Musgrove again told Davis it
was unfair that he had to remove the article when he
had not posted it. Davis told Musgrove that he "didn't'
want trash like that posted."
C. Analysis and Conclusions
The General Counsel and the Charging Party contend
that the Company violated Section 8(a)(1) of the Act by
removing "Definition of a Scab" from union bulletin
boards and.by threatening employees with punishment if
they posted or reposted London's commentary. The
Company denies that it violated the Act on the -ground
that the posting of Jack London's pejorative appraisal of
nonstriking employees had disrupted the discipline of its
employees and thus was beyond the protection of Sec-
tion 7 and Section 8(a)(1) of the Act.5
The Board has recognized "that the use of an employ-
er's bulletin board by a union for union purposes is not
generally protected activity under the Act." Container
Corp. of America, 244 NLRB 318, 321 (1979). However,
when an employer provides bulletin board space to a
union , the union's use of the board takes on the protec-
tion of the Act to the extent that the employer "may not
thereafter discriminate" against an employee who posts a
union notice which meets the employer's rule or stand-
ard but which the, employer finds distasteful." Nugent
Service, 207 NLRB 158, 161 (1973). Accord: Container
Corp. of America, supra . Nor may the employer remove
Sec 7 of the Act provides in pertinent part
Employees shall have the right to self-organization , to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection
5
Sec 8(a)(1) of the Act provides in pertinent part
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain , or coerce employees in the exercise
of the rights guaranteed in section 7
1057
union literature from the bulletin board because it con-
tains insulting material if it is otherwise protected by the
Act. Ibid.
The Board has also held. that an employer may lawful-
ly request that employees remove offending slogans from
their workplace in the interest of "maintaining discipline
and harmonious employee-employer relations." South-
western Bell Telephone Co., 200 NLRB 667, 671 (1972).
Thus, the Board has adhered to the principle expressed
by the Supreme Court in Republic Aviation Corp. v.
NLRB, 324 U.S. 793, 797-798 (1945), that the Board is
charged with "working out an adjustment between the
undisputed right of self-organization assured to employ-
ees under [Section 7 of the Act] and the equally undis-
puted 'right of employers to maintain discipline in their
establishments."
Here, I find that the purpose of posting the "Definition
of a Scab" was to tell-those unit employees who had de-
serted the strike that the Union viewed them as having
been disloyal to their., colleagues. Indeed, a substantial
number of employees had continued to work behind the
picket line The Union's interest in strengthening the em-
ployees' support for future economic strikes motivated it
to praise those who had supported the recently ended
economic strike and scorn those who had not.
Prior to the appearance of "Definition. of a Scab," the
Company had not imposed any limitations on the
Union's use of its bulletin boards on the Company's
premises. Therefore, the unit employees who supported
the Union by posting the "Definition of a Scab" were
protected by Section 7 of the Act unless the message in
that commentary was likely to precipitate a disruption of
discipline. Southwestern Bell Telephone Co., supra.
In Southwestern Bell, 200 NLRB at 670, the Board
found that the wearing of sweatshirts beanng the slogan
"Ma Bell is a Cheap Mother" was unprotected because it
was an insult directed at management . The Board went
on to find that the constant appearance of this shirt at
the workplace was likely to spread discord and bitterness
between the employees and their supervisors. Ibid. The
facts in the instant case distinguish it from Southwestern
Bell. Here, the controversial language was not worn on a
shirt which would be constantly in view, but was dis-
played on bulletin boards.- More importantly, the lan-
guage was not directed at the Company or its manage-
ment . Thus, it was not likely to cause discord and bitter-
ness between employees and supervisors. These factors
persuade" m.e that the result in Southwestern Bell is not
warranted here.
Looking to the Supreme Court's decision in Letter
Carriers Local 496 v. Austin, 418 U.S. 264 (1974), I find
support for 'my conclusion that the employees' posting of
"Definition of a Scab" on the Union's bulletin boards at
the Company's premises was protected under Section 7
of the Act. For after reaffirming its view that the use of
"scab" in labor disputes is entitled to the proctection of
Section 7 of the Act (id. at 283), the Court commented
directly on Jack London's "Definition of a Scab." Id. at
285-286. The Court held:
Jack London's "definition of a scab" is merely rhe-
torical hyperbole, a lusty and imaginative expression
1058 . DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
of the contempt felt by union members- towards
those who refuse to join. . . . Indeed, we note that
the NLRB has held that the use of this very "defini-
tion of a scab" is perriussible under federal law.
'Cambria Clay Products Co., 106 N.L.R.B. 267, 273
(1953), enforced in pertinent part, 215 F.2d 48 (C.A.
6 1954).
From.the foregoing, I find that the Company inter-
fered with, restrained, and coerced its employees in the
exercise of their rights guaranteed in Section 7 of the
Act, and therefore violated Section 8(a)(1) of the Act,
when Supervisor Bayarena removed "Definition of a
Scab" from the Union's bulletin board, when he told em-
ployee Cora Duncan that he had removed it, and when-
he warned her that she would be disciplined if she again
posted that literature on the Union's bulletin board. I
also find- that Bayarena violated Section 8(a)(1) of the
Act when he told Chief Steward Anita Miller that "Def-
inition of a Scab" should not be posted on the Union's
bulletin boards. I also find that the Company violated
Section 8(a)(1) of the Act when Supervisor Ralph Coch-
ran told employee Cora Duncan, in substance, that he
would not permit "Definition of a Scab" to be posted on
the Union's bulletin board and warned her of disciplinary
action because she had attempted to repost that literature
on the Union's -bulletin board. I further find that the
Company violated Section 8(a)(1) of the Act when Su-
pervisor Wesley Vienneau directed employee Milton
Musgrove to remove "Definition of a Scab" from the
Union's bulletin- boards, and again when Vienneau him-
self removed that literature. Finally, I find that the Com-
pany violated Section 8(a)(1) of the Act when Supervi-
sor. Thelmon (Tom) Davis directed employee Milton
Musgrove to remove "Definition of a Scab" from the
Union's bulletin board, and then threatened Musgrove
with suspension when he refused to carry out Davis' di-
rection.
ORDER
The Respondent, Southwestern Bell Telephone Com-
pany, Houston, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Removing or directing the removal of "Definition
of a Scab" or any other literature protected by Section 7
of the Act from bulletin boards maintained by the Union,
Communications Workers of America, Local 12222,
AFL-CIO, at the Respondent's facilities.
(b) Prohibiting employees from posting "Definition of
a Scab" or any other literature protected by Section 7 of
the Act on bulletin boards maintained by the Union at
the Respondent's facilities.
(c) Threatening employees with suspension or other
disciplinary measures because they post or refuse to
remove "Definition of a Scab" or any other literature
protected by Section 7 of the Act from, bulletin boards
maintained by the Union at the Respondent's facilities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act. -
(a) Post at its facilities at 3303 Weslay-an, Houston,
Texas, copies of the attached notice marked "Appen-
dix.", Copies of the notice, on forms provided by the
Regional Director for Region 23, after being signed ' by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices -to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and co-
ercing employees as found in section IV, above, the
Company has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
2: The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Company has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend that it cease and desist therefrom and
take.certain affirmative action in order to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed6
6 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 .48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
7 If this Order is enforced by a 'Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na'
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
SOUTHWESTERN BELL TELEPHONE CO. 1059
To engage in activities together for the purpose
of collective bargaining or other mutual aid or pro-
tection
To refrain from the exercise of any or all such
activities.
WE WILL NOT remove "Definition of a Scab" or any
other literature protected by Section 7 of the National
Labor Relations Act from bulletin boards maintained by
the Union, Communications Workers of America, Local
12222, AFL-CIO, at our facilities.
WE WILL NOT prohibit our employees from posting
"Definition of a Scab" or any other literature protected
by Section 7 of the Act on bulletin boards maintained by
the Union at our facilities.
WE WILL NOT threaten employees with suspension or
other disciplinary measures because they post or refuse
to remove "Definition of a Scab" or any other literature
protected by Section 7 of the Act from bulletin boards
maintained by the Union at our facilities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
SOUTHWESTERN BELL TELEPHONE COM-
PANY