Telephone Answering Service Union Local 780 (Federated Communications)

National Labor Relations Board - Board Decisions

Sep 25, 1985

276 N.L.R.B. 507 (N.L.R.B. 1985)

TELEPHONE ANSWERING SERVICE UNION LOCAL 780 (FEDERATED 'COMMUNICATIONS)
United Telephone Answering and Communications
Service Union, Local 780, AFL-CIO ` and Fed-
erated Communications Services , Inc. Case 2-
CB-10559
25 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND' BABSON
On. 19 April, 1985 Administrative Law Judge
Joel P. Biblowitz issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed briefs in support of
the decision and in response to the 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, i and
conclusions, and to adopt the recommended Order
as modified.2 ,
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge -as modified below and orders that the Re-
spondent, United Telephone' Answering and Com-
munications Service Union, Local 788, AFL-CIO,
New York, New York, its officers, agents, and rep-
resentatives,; shall take the action set forth in the
Order as modified. . •
Add the following as paragraph 2 and renumber
the subsequent paragraph.
"2. Cease and desist from in any like or related
manner restraining or coercing employees in the
exercise of rights guaranteed them in Section 7 of
the Act."
I The Respondent has excepted to some of the Judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The judge's recommended Order is modified to include a provision
that the Respondent refrain from engaging in any conduct like or related
to the conduct here found unlawful
Paul Ptucha, Esq. and David Leach, Esq., for the General
Counsel. .
Jon Quint, Esq. (Markewich; Friedman & Markewich), for
the Respondent. '
Jane Jacobs Esq. (Seham, Klein & Zelman), for the
Charging Party; "
DECISION
507
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This
case was tried before me in New York, New York, on
December ' 20, 1984,1 and January 31, 1985. The com-
plaint and notice of hearing, which issued August 27,
and was based on an unfair labor practice charge filed on
July ' 16 by Federated Communications Service, Inc. (Fed-
erated) alleges that United ;Telephone Answering and
Communications Service Union, Local '780,'AFL-CIO
(the Resporident) about July 1, 6, 16, '20, and 22, in the
vicinity of. Respondent's picket line 'in front of Federat-
ed's facility, threatened. employees with physical violence
in order to force or require the employees to honor the
,picket line or,to otherwise support or assist Respondent.
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
briefs fled by 'the parties, I make the following
FINDINGS OF FACT -
I. JURISDICTION -
Federated," a Florida corporation, with an office and
principal place of business at 210 East 86th Street, in the
' City"and -State of New York (the facility) is 'engaged 'in
the business of providing telephone' answering services to
'various ' commercial and private customers. Annually,
Respondent, in the course and `conduct of its business op-
erations, derives gross revenue in excess of $500,000 and
purchases'and receives at its facility goods and materials
valued in excess of $50,000 from points outside the State
of New York. Respondent admits, and I find, that Feder-
"ated is' an employer, engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits and I find that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III., FACTS AND ANALYSIS
About August 17, 1983,'and continuing to the present,
Respondent- has been engaged in a strike at the facility.
Respondent'has continued operating the facility through
the employment of strike replacements; two of them,
Sharron Jackson (whose employment with Federated
ceased in September) and Veronica Dukes, were the sole
witnesses for the General Counsel to the events in ques-
tion . They testified to a number of incidents that oc-
curred to them as they were about to enter the street
level door that leads to the facility. There is a police bar-
ricade between this door and the street, closer" to, and
parallel to , the street. Respondent' s witnesses testified
that they always remained on the street side of this barri-
cade, except that on those occasions when it was very
hot, they stood below a movie theatre marquee, a few
doors away, from the facility. All of Respondent's wit-
1 Unless indicated otherwise, all dates referred to herein are for the
year 1984. •
276 NLRB No. 28
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nesses-Margaret Russell, Josephine Dobbs, Jacinta Sil-
vester, and Rose Frazier-testified that they did not
direct any comments at the strike replacements from
under the marquee; rather when they saw a replacement
approaching the facility they returned to their positions
behind the barricade and yelled "scab," "Federated
scab," or "Federated no contract scab" in the case of
Dobbs. Dukes testified that at times the strikers were
behind the: barricade and at other times they were be-
tween the barricade and the building. -
Jackson testified that at the very end of June, or the
first couple of days in July, as she was entering the facili-
ty prior to 10 a.m., she observed Frazier- and Silvester
picketing. Frazier yelled at her, "Oh, you Federated
scab, you're going to- lose your fob."2 Jackson answered
that she did not care because she did not need the job.
Frazier answered, "We'll see " She also testified that 4 or
5 days later as she was returning to the facility one
morning, she observed -Frazier and another woman
standing near the movie theater. When she saw Jackson,
she ran toward her ("like a maniac") yelling, "oh, you
Federated scab" and other things. -She testified: "One
thing led to another and one of us called one or the
other bitch." Frazier then. said that she was going to kick
Jackson's "mother's ass." Jackson asked who she thought
she was since her mother did not work at Federated, and
she went into the facility. .Jackson testified that shortly
after that incident' as she was passing the movie theatre
on the way. to the facility, Frazier yelled at her, "Hey
you bitch, you Federated scab." Frazier continued to
call her a "bitch" and a "skinny bitch" and said that she
would kick her "ass" and her "mother's ass."* As to
whether she answered Frazier's remarks, Jackson testi-
fied:
Oh, I always answer. At the particular moment I
can't remember what I said. I think I probably
yelled back, "Come on kick my ass if you think you
can do it" or something because I do yell back at
her.
Dukes testified that- about July 21, about noon, as she
and Jackson were leaving the facility to go to lunch, she
observed Frazier- and- Russell; Frazier called them
"bloodsuckers" and "scabs"; Jackson called - Frazier a
name (which Dukes could not remember); and Frazier
yelled, "I'm going to kick your ass," which Jackson also
answered. Dukes also testified that an incident occurred
on July 24, although she could not remember anything
that occurred at that time other than."the pickets were
out there just calling names and that 's all I remember."
2 Counsel for Federated, in her brief, alleges that this statement by
Frazier violates Sec 8(b)(1)(A)'of the Act The complaint alleges that
Respondent "on or about July 1, 16, 16, 20, and 22, in the vicinity of
Respondent 's picket line at the Employer's facility; threatened employees
with physical violence " The complaint does not allege the threat of job
loss, nor did the General Counsel move to amend the complaint in that
regard , _or 'otherwise inform Respondent that she was alleging this inci-
dent as a violation In addition , this issue was not fully litigated , as coun-
sel for Respondent did not cross -examine Jackson on the subject or intro-
duce any evidence to refute this testimony I therefore shall make no
finding regarding this statement Chandler Motors, 236 NLRB 1565
( 1978), American Pistachio Corp, 249 NLRB 1193 ( 1980).
Russell testified that the only word's she ever directed
at strike replacements, and the only words she heard
Frazier say were- "Federated scab." (Her general picket-
ing hours and Frazier's often overlapped by 2 hours.)
The only location that she directed these words from
were from behind the barricade; if she were under the
theatre marquee when • she first observed the strike re-
placement approaching, she and the other pickets first
went behind the barricade before saying anything to
them Dobbs also testified: "We don't say anything when
we're standing at a distance from the barricade. If we see
anyone we come back to the other side and then-we
make our greetings." The only words she directed at the
strike 'replacements were "Federated scab" or "Federat-
ed no contract scab." Her picketing hours coincided
with some of the hours that Frazier picketed and she
never heard Frazier say anything to Jackson other than
"Federated scab," even when Jackson directed obscene
gestures at her. Silvester testified that the pickets some-
times stand under the theatre marquee, "but we do not
say anything to them unless we're by the barricade." She
usually said, "scab" or "Federated scab." She frequently
picketed with Frazier and never heard her tell a replace-
ment that she would kick her "ass" or her "mother's
ass;" the only words she ever heard Frazier direct at the
strike replacements were "Federated scab," even after
Jackson made a gesture at the pickets. Frazier testified
that the only words she -directed at strike replacements
were "Federated scab" or "Good morning scab"; on
those occasions that Jackson made an obscene.gesture to
her she said "same to you," and when Jackson threat-
ened to kick her "ass," she said, "Well, try it." She and
the other pickets stood under the theater marquee. when
it...was very hot; when they saw a replacement arriving,
they returned to the barricade before saying anything to
the replacements. She testified that she never said to
Jackson that she would kick her "ass" or her "mother's
ass.
The incident brought most sharply into focus by the
testimony of the participants is one that occurred on
Sunday, July 22. Jackson testified that, on that day, she
left for lunch at the same time as Dukes, although they
went to different places . Dukes had the key to the door
(on Sunday, the door is locked) and Jackson returned
prior to Dukes. As she waited at the door for Dukes,
Frazier (who was at the door, rather than behind the
barricade) told her that she should not mess with her. and
that she would kick her "ass." Jackson did not say any-
thing. Dukes then arrived and Frazier called them scabs
and got very close to Dukes. Dukes opened the door and
Jackson went inside; Frazier put her foot in the door and
Dukes asked her, "Why don't you go about your busi-
ness?" Frazier said, "If ' anybody bothers me, I'll bother
them back" and Dukes said that she was not bothering
her. Frazier then said: "Well, if anybody does it, I'm
going to kick their ass." Jackson told Dukes to come
inside, which she did, and closed the door behind her.
Dukes testified that on that day in question , as she was
returning from lunch , she and Jackson were at the
ground floor door that leads to the facility, about to
unlock the door to enter; three or four pickets were at
TELEPHONE ANSWERING SERVICE UNION LOCAL 780 (FEDERATED COMMUNICATIONS)
the side of the door. Dobbs then said something to
Dukes that she did not understand, but did not like and
she told Dobbs not to get personal with her Frazier then
said, "As long as you mind your business and don't get
personal with us, we won't get personal with you." Jack-
son told Dukes to go into the building and Frazier said
to Jackson that she would kick her "ass." Jackson got
angry, but said nothing as Dukes convinced her to go
into the building and not answer Frazier. Frazier, who
was standing in the doorway said something else, which
Dukes could not remember,' and they returned to work.
Dobbs testified that.on July 22, when Dukes and Jack-
son were about to enter. the door leading to the facility,
she, Frazier, and the other pickets were behind the-barri-
cade (where they remained) saying, "scab," "Federated
scab," and "no contract scab." Jackson walked into the
building and before Dukes walked in, Dobbs said some=_
thing to her
I made a remark or I called out a word. It was not
a profanity, as a matter of fact it was a dictionary
type word that this girl didn't know the meaning of.
She thought we were insulting her . . . I know. I
used a $64.00 word on her, which she didn't know
what I meant. She thought I meant some insult
Dobbs testified that she could not remember what the
word was, but Dukes answered: "Don't get personal
with me." Jackson then told Dukes to come inside,
which she did. She never heard Frazier make any
threats. Frazier testified that on the day in question she,
Dobbs, and the other pickets were behind -the barricade
saying, "'Federated scab" and "Good morning scab."
Jackson and Dukes were waiting to get into the building
and Dobbs said something to Dukes, "I can't recall ex-
actly what Dobbs said, but whatever Dobbs said to her
it was not anything bad, but the girl did not understand
the word." Frazier and Dobbs smiled at each other and
that was the extent of the incident. She and the other
pickets remained on the street side of the barrier; she
never put her foot in the door.
Jackson testified that she never initiated any conversa-
tions or disagreements with the' pickets, but when they
(or Frazier) yelled at her, she always answered them:
And after awhile she started talking about my
mother and my family. My mother and my family
weren't going into Federated. So after that, yes, my
temper sparked and I started answering her . .. . I
can take a lot, but you don't go talking about-
peo-ple's parents . They had nothing to do with it.
It's one thing to be called scab. That's fine. I knew
there was a union thing when I went there. Some-
body's on the picket line, but to go there and find
out that people are going to start talking about your
family, and then things like that. Then not only that
not even being where they were supposed to be.
Behind the picket- line, fine. I didn't walk over
there. I had no business being over there.
I walked -on the side that was open to me When
people start jumping out at me in the movies .. • .
509
you know they coming from the movies,. that is
wrong. That is very wrong . . . . They have no
business being over there.
Jackson testified that she has made obscene gestures at
the pickets, but did not make such a gesture with her
middle finger. Dukes testified. that Jackson answered the
pickets' name calling; sometimes she would repeat the
pickets' words (like "bloodsuckers"), sometimes she
would say, "same to you," and at other times she said,
"I'll kick, your ass." Russell testified that Jackson called
them obscene names and made obscene gestures to them
with her third finger. Dobbs testified that when Jackson
entered or left the facility she made obscene gestures
with her third finger toward them and made obscene ref-
erences to the pickets' mothers. Silvester testified that
after the pickets called her a scab, Jackson made refer-
ences to..their. mothers and, made gestures at them with
her hands. Frazier testified that "every day of the week,"
while standing in the doorway, Jackson made an obscene
gesture with her middle finger and, at_ times, would com-
bine this' gesture with bending over.- She directed a
number of obscenities toward the pickets, including, "I'll
kick your ass." On those occasions, the pickets said:
"Same to you," or dared Jackson to try it.
The testimony of General Counsel's witnesses failed to
place any official of Respondent • at the picket line during
any 'of the above-recited events; however, the evidence
did establish that Respondent's president Jerry Fischer
was rarely present, and its secretary-treasurer Adele
Sutton was usually present at the picket - line in the after-
noons. Dobbs was a shop steward for Respondent at,
Federated and Frazier was elected as a member of Re-
spondent's executive board.in November 1983, and has
held that position since that time, although no evidence
was adduced to establish what that position entails, or
the parameters of the powers and, responsibilities of it.
The pickets have been paid a nominal amount by Re-
spondent for their picketing duties to cover their ex-
penses. The amount, that Frazier received varied from
$17 to $22 a week.
The credibility issue herein is clear; Jackson and
Dukes testified that Frazier made the threatening com-
ments to Jackson; Respondent's witnesses testified that
Frazier, never directed any comments to strike replace-
ments other than "scab," "Federated scab, or "Good
morning scab." In making this credibility determination I
am cognizant of the fact that in a prior hearing involving
the same parties (JD-(NY)-74-84); which issued July 9,
1984, I found Frazier and. Dobbs to be credible wit-
nesses. However, after examining the evidence herein, I
credit the testimony of Jackson and Dukes over the testi-
mony of Respondent's witnesses. Jackson and Dukes ap-
peared to be very credible witnesses; they admitted that
Jackson answered the pickets' taunts and freely admitted
when they did not remember certain incidents. In addi-
tion, I was impressed by Jackson's candid testimony
quoted, supra, regarding the pickets' actions. Finally, I
do - not believe the testimony of Respondent's witnesses
that the pickets never said anything other than "scab,"
"Federated scab," or "Good morning scab," and then,
only from behind the barricade. At the time in question
510 '- -'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had been picketing for almost a year as the replace-
ments covered their gobs. It is more reasonable to- believe
the testimony of Jackson and Dukes'as to' what was said
and from where.
Having found that these statements were made, it is
necessary to determine if Respondent is responsible for
them. The general " rule is that "in authorized strikes the
union is responsible for the action of the pickets: Roofers
Local 30 (Associated Builders), 227 NLRB +1444 (1977),
"where a union authorizes a picket line,. it is required to
retain control over the picketing..If a union is unwilling
or unable to take the necessary steps to control 'its.pick-
ets, it must bear the responsibility for misconduct on the
picket line." Boilermakers Local 696 (Kargard Co.), 196
NLRB 645, 647'(1972). The picketing had taken place
for almost a year prior to these incidents and the pickets
were paid by Respondent 'for their picketing time; the
picketing was thus clearly authorized and Respondent
was therefore responsible for Frazier' s actions . In addi-
'tion, Dobbs is- Respondent's shop steward and Frazier
has been - a member of Respondent's executive board
since November 1983; although no additional testimony
was adduced regarding these positions , it makes them
elected representatives or officers of the Respondent, an-
other reason to find Respondent to be 'responsible for
Frazier's acts. Woodworkers (Pioneer Lumber Corp.), 140
NLRB 602, 606 (1963); Teamsters Local 115'(E. J. Lavino
Co.), • 157 NLRB -1637, 1642 (1966); Electrical Workers
IBEW Local -175 (Duncan Electric Co.), 269 NLRB 691
(1984); Electrical Workers IBEW Local 441 (Bear State
Electric), 269 NLRB 664 (1984). As-the Board stated in
Electrical Workers`IBEW Local 453 (National Electrical),
258 NLRB 1427 at 1428: "The Board regularly finds
elected or appointed officials of an organization to be
agents of that organization. While the holding of elective
office does not mandate a finding of agency per se, such
status is persuasive and substantial evidence which will
be decisive absent compelling contrary evidence."
Finally, as I credit Jackson' s and Duke's testimony, I
find that in early to mid-July and on July 22, Frazier
told Jackson that she would kick her "'ass" and her
"mother's ass" although Jackson may have answered
these threats, they were initiated by Frazier. Although
not as' serious as the use of' physical force, these threats
still constitute illegal coercion within the meaning of
Section 8(b)(1)(A)'of'the Act. Roofers Local 30, supra at
1450; Ironworkers Local 455 (Stokvis Multi-Ton 'Corp.),
243 NLRB 340 (1979).
On the basis of the foregoing findings of fact and con-
clusions, law and on the entire record in this case, I
make the following
CONCLUSIONS OF LAW
1. Federated -is ' an employer engaged in commerce
within the meaning of Section 2 (2), (6), and (7) of the
Act. '
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act. . r
3. By interfering with, restraining,, and coercing em-
ployees in the exercise of the rights guaranteed them by
Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices proscribed by Section
8(b)(1)(A) of the Act.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in certain unfair labor practices, I' shall recom-
mend that it cease and desist therefrom and take certain
affirmative action designed 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-
ed3 '
ORDER
The Respondent, United Telephone Answering and
Communications, Service Union, Local 780, AFL-CIO,
New York, New York, its officers, agents, and represent-
atives
1. Cease and desist from threating to assault employees
of Federated Communications Service, Inc.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its office and at any place where its meet-
ings are .customarily held, copies of the attached notice
marked "Appendix."4 Copies- of said notice on forms
provided by the Regional Director for Region 2, after
being signed by an official representative of Respondent,
shall.be posted by it immediately upon receipt and main-
tained for 60 consecutive days thereafter in conspicuous
places including all places where notices to its members
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that said notices are not al-.
tered, defaced, or covered by any other material.
(b) Mail signed copies of the notice to the 'Regional
Director for Region 2 for posting by Federated Commu-
nications Service, Inc., if it is willing to post such notice,
at all locations where notices to its employees are cus-
tomarily posted.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
9 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
* 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
I
TELEPHONE ANSWERING SERVICE UNION LOCAL 780 (FEDERATED COMMUNICATIONS) 511
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT restrain or coerce employees ' of 'Feder-
ated Communications Service , Inc., by threatening to in-
flict bodily harm upon such employees or their relatives,
because they refuse to honor our picket line.
WE WILL NOT in any like or related manner restrain or
coerce employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
UNITED TELEPHONE ANSWERING AND
COMMUNICATIONS SERVICE UNION, LOCAL
780, AFL-CIO