Telephone Traffic Union, Upstate Local 212, T.I.U. (New York Telephone Co.)

National Labor Relations Board - Board Decisions

Mar 17, 1986

278 N.L.R.B. 998 (N.L.R.B. 1986)

998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Telephone Traffic Union, Upstate Local 212, T.I.U.
(New York Telephone Co.) and Kathleen Baron,
et al. Case 3-CB-4413, et al.
17 March 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN, BABSON, AND
STEPHENS
On 8 August 1985 Administrative Law Judge
Howard Edelman issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
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 1 and briefs and
has decided to affirm the judge's rulings, findings,2
and conclusions3 and to adopt the recommended
Order as modified.4
i We find merit in the General Counsel's exceptions to the judge's fail-
ure to find that the Respondent violated Sec 8(b)(1)(A) by charging and
imposing fines on employee Bonnie Ballone who resigned from the Union
during the strike Ballone sent a letter of resignation by regular mail to
Union President Dawson on 18 August 1983. One month later, the
Union's secretary-treasurer returned the letter to Ballone by mail, stating
it had been sent to the wrong union official. The Respondent maintains
Ballone's resignation was ineffective because Ballone failed to follow the
Union's procedural requirements that resignations be submitted in writing
to the secretary-treasurer by registered mail. Assuming these require-
ments are legal they are not a valid defense in this case Although Bal-
lone did not send the letter to the secretary -treasurer by registered mail,
the Respondent does not dispute the fact that it received the letter. We
therefore find that Balone belongs to the category of individuals similarly
situated to those listed in G C Exh. 2 and the attached App. A Carpen-
ters Local 470 (Tacoma Boatbuilding Co.), 277 NLRB 513, 515 fn. 7
(1985). We leave to the compliance stage of this proceeding the determi-
nation of when Respondent would have received Ballone's resignation
absent its refusal to accept it
2 In agreeing with the judge's finding that certain individuals did not
constructively resign from the Union, we conclude that the futility doc-
trine is not applicable to this case. Although the employees were aware
of the union constitution's unlawful resignation restrictions, there is no
showing that these individuals did not submit resignations because they
had an objective basis for believing an attempt to resign would be futile
Thus, we find no evidence that the Union's conduct would reasonably
tend to create the impression of futility . Communications Workers Local
9201 (Pacific Northwest Bell), 275 NLRB 1529 (1985), Machinists Local
1374 (Columbia Machine), 274 NLRB 123 £n 1 (1985).
In finding that the Respondent did not violate Sec. 8(b)(1)(13) of the
Act by imposing fines on supervisor-members who performed a substan-
tial amount of unit work during the strike, the judge also concluded that
the Respondent did not violate Sec 8(b)(1)(A). No party has excepted to
the judge's dismissal of the 8(b)(1)(A) allegation regarding supervisor-
members' preresignation conduct
3 We shall modify the judge's Conclusions of Law to correct his inad-
vertent omission of the findings that the Respondent violated Sec
8(b)(1)(A) by unlawfully restricting members' right to resign from the
Union and by charging and imposing fines on Charlotte Schermerhorn, a
nonmember of the Union who worked during the strike.
4 We shall modify the judge' s recommended Order to conform with
his findings
AMENDED CONCLUSIONS OF LAW
Add the following as paragraphs 3 and 4 to the
judge's Conclusions of Law and renumber the sub-
Sequent paragraphs accordingly.
"(3) By maintaining and enforcing article 5, sec-
tion 3(a), of its constitution prohibiting resignation
until 30 days subsequent to actual receipt of such
resignation, the Respondent violated Section
8(b)(1)(A) of the Act.
- "(4) By processing internal union charges and
imposing a fine against Charlotte Schermerhorn for
working while she was not a union member at
New York Telephone and AT & T Communica-
tions during the strike that commenced on 7
August 1983, the Respondent violated Section
8(b)(1)(A) of the Act."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Telephone Traffic Union, Upstate Local
212, T.I.U., Liverpool, New York, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 1(c) and re-
letter the subsequent paragraph.
"(c) Processing internal union charges and im-
posing or collecting fines against employees of
New York Telephone and AT & T Communica-
tions for working during a strike while they are not
union members."
2. Insert the following as paragraph 2(c) and re-
letter the subsequent paragraphs.
"(c) Rescind all internal union charges and fines
imposed on Charlotte Schermerhorn for working
while she was not a union member during the
strike that commenced on 7 August 1983."
3. Substitute the attached Appendices A and B
for those of the administrative law judge.
APPENDIX A
Geraldine Brazie
Catherine Burgess
Sophie Cooper
Dorothy Distel
Audrey Englert
Virginia Gonzales
Barbara Gugoleit
Mary Hall
Noreen King
Beatrice Kaminsky
Mary Ellen Mouton
Bonnie Ballone
David Kelly
Patricia Kelly
Josephine Lapinskas
Theresa Knapp
Susanne Leffler
Anita McConnel
Susan Sown
Margaret Sorensen
Eileen Sullivan
Lorraine Quackenbush
Charlotte Schermerhorn
278 NLRB No. 144
TELEPHONE TRAFFIC UNION LOCAL 212 (NEW YORK TELEPHONE) 999
APPENDIX B
NOTICE To MEMBERS
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 ordered us to post and abide by this notice.
WE WILL NOT maintain in our governing docu-
ments article 5 , section 3 of the constitution of
Telephone Traffic Union, Upstate Local 212,
T.I.U. to the extent it provides:
Membership in the local union shall be termi-
nated by:
(a) Resignation submitted in writing to the
Secretary-Treasurer by certified mail. Such
resignation shall only be effective 30 days sub-
sequent to actual receipt of such written resig-
nation by the Secretary -Treasurer . During the
aforementioned 30 day period the individual
shall have all rights, duties, and responsibilities
of union membership.
WE WILL NOT restrain or coerce employees who
have resigned from and are no longer members of
our Union in the exercise of the rights guaranteed
them by Section 7 of the Act by imposing court-
collectible fines on such employees because of their
postresignation conduct in working at New York
Telephone and AT & T Communications during
the strike that began on 7 August 1983.
WE WILL NOT process internal union charges
and impose court-collectible fines against employ-
ees of New York Telephone and AT & T Commu-
nications for working during the strike while they
are not union members.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL remove from our governing docu-
ments the portion of article 5 , section 3 of our con-
stitution , as set forth above.
WE WILL rescind the fines levied against the em-
ployees named in "Appendix A" and other similar-
ly situated employees because of their postresigna-
tion work for the Employer during the strike that
began on 7 August 1983 and refund to them any
moneys they may have paid as a result of such fine,
with interest.
WE WILL rescind all charges and fines imposed
on Charlotte Schermerhorn for working while she
was not a union member during the strike that
began on 7 August 1983 , and WE WILL refund any
moneys she may have paid in such fine , plus inter-
est.
TELEPHONE TRAFFIC UNION, UP-
STATE LOCAL 212, T.I.U.
Alfred M. Norelc, Esq., for the General Counsel.
Charles Blitman, Esq. (Blitman & King), of Syracuse,
New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN , Administrative Law Judge. This
case was tried before me on 7 January through 10 Janu-
ary 1985.
On 30 August 1984 an order consolidating cases and
third amended consolidated complaint and notice of
hearing issued, based on charges filed by the above
named individuals , set forth in the caption above. The
thrust of the complaint alleged that the Telephone Traf-
fic Union, Upstate Local 212, T.I.U. (Respondent), vio-
lated Section 8(b)(1)(A) and (B) of the National Labor
Relations Act by unlawfully imposing fines upon various
individuals in connection with an economic strike be-
tween Respondent and New York Telephone and AT &
T Communications (collectively the Employer).
Briefs were filed by the General Counsel and counsel
for Respondent. On my consideration of the entire
record, the briefs,' and my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
JURISDICTION
The Employer, New York Telephone' Co. and AT &
T are New York State corporations with offices and fa-
cilities located throughout New York State and are en-
gaged in the business of providing and installing local
and long distance telephone communication and related
services in the State of New York. New York Telephone
Co. and AT & T, each, in the course and conduct of its
operation within the State of New York, annually de-
rives gross revenue in excess of $1 million and annually
purchases and receives goods and materials valued in
excess of $50,000 which are shipped to it within the
State of New York directly from points located outside
the State of New York.
I find that New York Telephone and AT & T individ-
ually and collectively are employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
I find Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
For a period of many years, Respondent and the Em-
ployer have maintained a long , collective-bargaining re-
I The General Counsel in his brief moved to withdraw all allegations
relating to the charge filed by Jean Blackstone , an individual , in view of
her testimony which established that she learned of Respondent's resigna-
tion restrictions subsequent to the strike . The motion is granted.
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lationship. The collective-bargaining agreements encom-
pass a unit of operators and other related classifications.
The individuals involved in this proceeding are all unit
employees except as described below. z
On 7 August 1983 the then-existing, collective-bargain-
ing agreement having expired and the terms and condi-
tions for a successor agreement not agreed on, Respond-
ent commenced an economic strike against the Employ-
er. This was the first strike during the parties' long bar-
gaining history and lasted until 27 August 1983.
Respondent's constitution provides as follows:
Membership in the local union shall be terminated
by:
(a) Resignation submitted in writing to the Secre-
tary Treasurer by certified mail. Such resignation
shall only be effective 30 days subsequent to actual
receipt of such written resignation by the Secretary
Treasurer. During the aforementioned 30 day
period the individual shall have all rights, duties,
and responsibilities of union membership.
On various dates in August 1983, various individual
charging parties, designated in a stipulation received in
evidence as General Counsel's Exhibit 2,3 and other indi-
vidual members submitted letters of resignation which
were received by Respondent during the month of
August 1983. Respondent, pursuant to its resignation pro-
vision, described above, commenced internal charges and
imposed fines on the various individuals described above,
for working during the course of the August 1983 strike.
The General Counsel contends that such conduct di-
rected to individuals, set forth in General Counsel's Ex-
hibit 2 and to other unnamed individuals "similarly situ-
ated," is violative of Section 8(b)(1)(A) of the Act.
Counsel for Respondent contends Respondent's action
is consistent with its right to protect itself by mainte-
nance and enf6rcement of its constitutional resignation
provision. Counsel for Respondent further contends that
only those individuals specifically set forth in the stipula-
tion described in General Counsel's Exhibit 2 are subject
to the Board's remedial process, and thus other unnamed
individuals who were "similarly situated" are not subject
to the Board's remedial process.
At the time this case was tried, the issue of a member's
right to resign from a union was pending before the Su-
2 It is alleged that the Union unlawfully imposed fines on Raymond
Beland and Mary Ellen Menton, who the General Counsel contends,
were at the time such fines were imposed, acting supervisors.
The individuals set forth in G C Exh 2 are-
Geraldine Brazie David Kelly
Catherine Burgess Patricia Kelly
Sophie Cooper Josephine Lapinskas
Dorothy Distel Theresa Knaupp
Audrey Englert Susanne Leffler
Virginia Gonzales Anita McConnel
Barbara Gugoleit Susan Sown
Mary Hall Margaret Sorensen
Noreen King Eileen Sullivan
Beatrice Kaminsky Lorraine Quackenbush
Mary Ellen Mouton
preme Court. The then-current Board law was set forth
in Machinists Local Lodge 1414 (Neufeld Porsch-Audi),
270 NLRB 209 (1984), which clearly decided that any
restrictions on a member's right to resign from a union
are unlawful restrictions on an employee's Section 7
rights and are therefore violative of Section 8(b)(1)(A).
Respondent's attorney in his brief recognized that under
the then-current Board law, Respondent's action con-
cerning members who submitted resignations before or
during the strike were unlawful. However, in view of
the pending Supreme Court case, Respondent litigated
the issue to protest its legal position.
Subsequent to the trial of this case and the submission
of briefs, the Supreme Court issued its decision in Pattern
Makers, 473 U.S. 95 (1985), which concluded that the
Board was justified in concluding that any restrictions on
the right of employees to resign membership in their
union impaired the congressional policy of voluntary un-
ionism implicit in the Act. Thus, it is clear that at least
with respect to those employees set forth in General
Counsel's Exhibit 2, Respondent, by its actions described
above, violated Section 8(b)(1)(A) of the Act.
With respect to Respondent's position that any remedy
issued should only apply to those individuals set forth in
General Counsel's Exhibit 2 and not to others similarly
situated, the Board has consistently rejected this conten-
tion. Boilermakers Local 154 (Western Pennsylvania Service
Contractors), 253 NLRB 747, 748 (1980). Accord: Com-
munications Workers Local 1122 (N. Y Telephone Co.),
226 NLRB 97, 99 (1976); Electrical Workers Systems
Council T-6, 236 NLRB 1209, 1210 (1978); Ironworkers
Local 45, 235 NLRB 211, 212 (1978). Thus, I would con-
clude the Board's remedial provisions apply to any em-
ployee similarly situated.
Accordingly, I conclude that Respondent, by charging
and imposing fines on various individuals who submitted
written resignations to it, and thereafter crossed Re-
spondent's picket line and returned to work, violated
Section 8(b)(1)(A) of the Act.
The General Counsel presented testimony from em-
ployees Nancy Fey, Virginia Deshane, Margaret Ridley,
Burdell Richie, Judith Olney, Carol Hrynuk, Mary Pi-
toniak Francisco, Raymond Beland, Bonnie Ballone, and
Debra Beland, to the effect that they did not resign just
before or during the strike because, in view of Respond-
ent's 30-day restriction on resignations, described above,
they concluded resignation would be futile. Concerning
these employees, the General Counsel contends they
constructively resigned and should be accorded the same
status as employees who submitted written resignations.
A union can lawfully discipline its members who cross
a picket line by imposing a fine. NLRB v. Allis Chalmers
Mfg. Co., 388 U.S. 175, 181 (1968). Respondent's consti-
tution admittedly prohibits members from crossing its
picket lines. Thus, notwithstanding Pattern Makers,
supra, which only prohibits a union from imposing resig-
nation restrictions, it would appear that if a member does
not resign, but instead crosses a picket line and returns to
work, a union would have the right to fine such member.
The Board is liberal when it comes to the manner in
which such resignation is communicated to the union.
TELEPHONE TRAFFIC UNION LOCAL 212 (NEW YORK TELEPHONE) 1001
Thus, when a resignation provision was required to be in
writing, the Board held an oral communication was suffi-
cient . Bricklayers Local 17 (California Tile), 271 NLRB
1571 (1984). However, it would appear that, at the very
least, the member intent upon resigning must take some
affirmative action consistent with resignation . California
Tile Co., supra . The subjective testimony of the witnesses
in this case that they would have resigned but felt it was
futile, fails to communicate to Respondent any intention
by such members to resign and is, in my opinion, unreli-
able. To hold otherwise would permit an individual to
retain union membership and the benefits that might flow
from such membership while crossing a picket line in
violation of the union's constitution and, later, after eval-
uating the positives and negatives, obtain retroactive res-
ignation by asserting they had always intended to resign.
How is the union to know? The General Counsel argues
that the law does not require an individual to engage in a
futile act , citing California Tile Co., supra. However, as
discussed above, the futile act described in that case was
in submitting a written resignation rather than an oral
resignation.
I conclude that, notwithstanding Respondent's resigna-
tion restriction, which I have concluded is unlawful, a
member intent upon resigning must take some affirmative
action consistent with resignation and communicate such
intention to Respondent . In the instant case, at least 30
members, described above, did communicate such inten-
tion to Respondent in writing . The General Counsel con-
cedes this situation is a case of first impression before the
Board , and I conclude it would be unwise to rely on sub-
jective testimony, in the absence of some affirmative
action by the member consistent with resignation, to de-
termine whether a member had effectively resigned. -
Respondent 's constitution provides:
Persons eligible for membership may [emphasis
added] apply by filing with the Local Union an offi-
cial application for membership card. Upon pay-
ment of dues and/or the signing of a direction to
deduct dues from his or her wages and the signing
of Application for Membership card , the applicant
shall be declared admitted to membership and shall
be entitled to all rights , powers and benefits and
privileges which are provided the membership by
this Local Constitution and the TIU Constitution or
any amendments.
Respondent 's constitution further provides that mem-
bership is terminated by a termination of employment or
transfer to a position out of the jurisdiction of Respond-
ent.
The Employer hires a number of "temporary employ-
ees" who perform bargaining unit work. These employ-
ees are covered by the collective-bargaining agreement
between Respondent and the Employer which defines a
"temporary employee" as : "one who is engaged for a
limited period which is expected to continue for more
than three weeks but not more than three years, with the
definite understanding that his/her employment is to ter-
minate by the end of such period." Many of these "tem-
porary employees" are frequently laid off and rehired
over a period of years . Upon each rehiring , the employee
is required to fill out a new set of employment applica-
tion forms by the Employer. Included in these forms is a
payroll deduction authorization which authorizes the
Employer to deduct from the employees' wages an
amount set forth "and described by checking the appro-
priate box as follows:
() My membership dues in such amount and in such
installments as may be certified by the collective
bargaining agent.
( ) An amount equal to 'the regular periodic dues
paid by members in the collective bargaining unit.
The Employer retains these signed checkoff" authoriza-
tions . However , when it submits the collected dues to
Respondent each month , a computer printout accompa-
nies the Employer's check and such printout designates
which employees checked the "membership dues" box or
the agency shop box.
Susan Calcagni was hired by the Employer for a fixed
period as a "temporary employee" on 2 June 1981 at
which time she joined Respondent and signed an applica-
tion card . The position terminated on 11 November
1982. With the completion of the job and severing of her
employment relationship, she no longer received benefits
from the Employer or paid dues to Respondent or other-
wise had contact with Respondent . Following the No-
vember 1982 severing of employment , Calcagni complet-
ed a new job application for employment which included
a checkoff authorization as described above with the
Employer . She was rehired as a "temporary employee"
on 27 June 1983 for a term which ended in November
1983. During this period Calcagni was not asked to sign
a new authorization card . She checked off the "member-
ship dues" box when she signed her checkoff authoriza-
tion and the Employer's printouts submitted to Respond-
ent reflected this.
Kathleen Baron started with the Employer in May
1981 as a "temporary employee" in a position which ter-
minated in February 1983. In July 1981 she signed an au-
thorization card for Respondent. Following severing of
employment , she received no benefits and ceased paying
"dues or otherwise having contact with Respondent.
Thereafter Baron applied for new employment through
the Employer 's employment office. She was again hired
as a "temporary employee" in May 1983 , after complet-
ing a new employment application which included a
checkoff authorization . On the day Baron resumed work-
ing, she was approached by Mary Alheim, a Respondent
representative, who handed her an authorization card
and asked her to fill it out and return it. Baron took the
card home and threw it away . Respondent made no fur-
ther effort to obtain her signed authorization card. She
designated the "union dues" box on her checkoff authori-
zation card , as reflected by the Employer 's printouts sent
to Respondent.
Geraldine Brazie joined Respondent and signed an ap-
plication card during a term of "temporary employment"
which lasted from June 1981 until February 1983. When
her employment terminated , she received no benefits
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Employer and ceased paying dues and other-
wise had no contact with Respondent. Brazie reapplied
for employment and was rehired as a "temporary em-
ployee" in May 1983. She filled out the usual employ-
ment application which included a checkoff authoriza-
tion, wherein she designated the "union dues" box, as re-
flected by the Employer's printouts sent to Respondent.
Shortly thereafter Respondent as representative Judy
Gruelich handed Brazie a membership card to fill out.
Brazie filled the card out and returned it to Gruelich.
Gruelich returned the card to Brazie to fill in additional
information. Brazie kept the card and did not return it to
Respondent. Respondent made no further efforts to
obtain Brazie's authorization card.
Charlotte Schermerhorn started with the Employer on
22 January 1968. She joined Respondent in May 1970 by
signing an authorization card. She has subsequently
worked in a variety of positions in units represented by
Respondent. However, for a 6-month period starting in
November 1976, she worked in the business office, a unit
represented by a separate labor organization. While em-
ployed in the business office, she ceased paying dues to
the Respondent. After 6 months she returned to a posi-
tion with a unit represented by Respondent. Since re-
turning to the unit Schermerhorn has, on a number of
occasions, informed Respondent representatives that she
was not a member. She was listed on the Employer's
printouts as an agency shop payer. Except for her 1970
authorization card, Schermerhorn did not sign any subse-
quent authorization cards. In 1980 Schermerhorn was
nominated for a minor office with Respondent. She testi-
fied that, as far as she was concerned, she was not a
member of Respondent and took no action in connection
with the nomination. She did not win the election.
Respondent President Marlene Dawson credibly testi-
fied without contradiction that, in the immediate past,
Respondent has followed the practice of not requiring a
new application for membership every time an employee
who has left the bargaining unit returns to bargaining
unit employment. When the employee originally fills out
the application for membership, Respondent keeps that
application on file. If the employee is laid off, Respond-
ent basically considers that member inactive until such
time as the employee is rehired and signs another dues-
checkoff authorization permitting deductions of his/her
"union dues." The employee's membership is "reactivat-
ed" once Respondent receives the computer printout
from the Employer indicating that the rehired employee
has renewed authorization for deduction of his or her
"union dues."
A reasonable interpretation of the express terms of Re-
spondent's constitution does not, in my opinion, require
that an employee must sign an application card. Rather
the constitution provides that "Persons . . . may [empha-
sis added] apply by filing an official application for mem-
bership card." There is certainly no requirement that an
application card be filed more than once, every time a
"temporary employee" is rehired Moreover, the Board
does not require a literal interpretation of a union consti-
tution. A union is permitted to interpret its constitution
in a reasonable manner unless it is subversive of person-
nel or property rights. American Nurses' Assn., 250
NLRB 1324 (1980). I find Respondent's interpretation as
set forth by Dawson's testimony to be eminantly reason-
able. In view of the common place practice of rehiring
temporary employees, it would appear practical and ex-
pedient to establish the practice enunciated by Dawson.
There is no dispute that when a "temporary employee"
is laid off or a regular employee like Schermerhorn is
transferred out of the jurisdiction, such employee's mem-
bership is terminated. However, on rehire, the employee
must take some affirmative action to indicate an intention
to become a member again . Electrical Workers IBEW
Local 1260 (KITV), 239 NLRB 923, 927 (1978). In this
connection, Respondent's practice has been to look to
the checkoff authorization executed by the rehired em-
ployee and treat those former members as determined by
their prior application card, which was on file as new
members if they checked the "union dues" box as op-
posed to the agency shop box. I find this practice to be a
reasonable and practical interpretation of Respondent's
constitution and one that satisfies the requirement that
the employee take some affirmative' action to indicate his
or her intention to become a member. The same practice
has been upheld by the Board. American Nurses' Assn.,
supra. In the instant case, such affirmative action consist-
ed of signing a checkoff authorization and checking the
"union dues" box.' In the case of employees Calcagni,
Baron, and Brazie, I conclude they indicated their inten-
tion to become members of Respondent by appropriate
designations on their checkoff authorizations. They took
no action indicating a desire for nonmembership. That
Baron and Brazie were given additional union cards to
fill out and return and that they failed to do so is insuffi-
cient action on their part to indicate to Respondent a
desire to be a nonmember. In this connection, Respond-
ent never pursued the employees to return the signed
cards, probably because it was discovered that they had
previously executed such cards which were on file. Such
failure to pursue was consistent with Respondent's prac-
tice to rely on the employee's initial card. I therefore
conclude that at all times during the strike, employees
Calcagni, Baron, and Brazie were members of Respond-
ent and that by bringing up these employees on charges
and imposing fines, Respondent did not violate Section
8(b)(1)(A) of the Act.
A difficult conclusion is reached with respect to em-
ployee Schermerhorn. In this case, when Schermerhorn
left Respondent's jurisdiction she ceased to be a member.
On her return, she took no affirmative action to renew
her membership. She did not, sign a union card. More-
over, the Employer's printouts indicated she had
checked off the agency shop box on her checkoff author-
ization. Additionally, she orally informed Respondent
representatives of her intention to be a nonmember. She
took no action consistent with membership. Accordingly,
I conclude that at all times material before and during
the strike, Schermerhorn was not a member of Respond-
ent, and that by bringing her up on charges and imposing
a fine upon her for working during the strike, Respon-
dednt violated Section 8(b)(1)(A) of the Act.
There is a practice in which bargaining unit employees
hold on a temporary basis an "acting" supervisory posi-
TELEPHONE TRAFFIC UNION LOCAL 212 (NEW YORK TELEPHONE)
tion . Such periods of acting supervisory status could be
from 1 to 6 months or even longer . During these periods
such "acting" supervisors possess Section 2(11) responsi-
bilities . They attend management meetings . They are
paid a substantial increase in wages over their unit wage
while they are in the "acting" supervisory capacity and
return to their unit wages when they resume their unit
jobs . At all times when unit employees are "acting" su-
pervisors , they are required to maintain their membership
in Respondent or pay the equivalent of periodic dues.
Raymond Beland had served as an acting supervisor
for the Employer on several occasions before the 1983
strike . In July 1983 , before the strike, he was again ap-
pointed to an "acting" manager capacity where his
duties included evaluating job performance for bargain-
ing unit employees , assigning overtime , and determining
staff size . There is no question that he was a supervisor
within the meaning of Section 2(11) during this "acting"
capacity. During the July-August 1983 period that
Beland was an "acting" manager, he was assigned to
work the night shift. On the night shift there were no
service assistants . Service assistants are unit employees
whose duties include training of operators. Therefore, in
addition to his supervisory • work, Beland performed
some training of employees when necessary. At times he
might also be called to perform the work of an operator,
but this was minimal . He only performed such work if an
operator left the room or there was short staffing that
night and the lines were unusually busy.
During the strike Beland worked for a period of 3
days and then sat out the strike . During this short period,
Beland spent most of his time training replacements and
performing operator 's work . He averaged 2 to 3 hours of
work during the strike period as an operator . Although it
may be true that before the strike Beland spent some of
his time training employees because of the absence of
service assistants on his shift and some occasional time as
an operator, it is clear and I find that for the period of
time he worked during the strike , he performed almost
exclusively unit work. At the very least, such work was
a significant increase in unit work over his prestrike
duties.
Mary Ellen Monton served as an "acting" manager
during the period of July 1983 and thereafter. She super-
vised about 20 employees . Her duties were clearly super-
visory within the meaning of Section 2(11) and included
evaluating and appraising operators ' performance and as-
signing time off. As there were service assistants on her
shift, she only supervised the actual training of employ-
ees performed by the service assistants . There is no ques-
tion but that Monton was, while in the capacity of
"acting" manager, a supervisor within the meaning of
the Act.
During the strike Monton worked for a substantial
period of time performing the duties of an operator and
training employees . This was necessary because of the
number of unit personnel on strike and because of the in-
experience of the replacements . I conclude , as in the case
of Beland, that during the strike, Monton performed
almost exclusively unit work . Certainly, at the very least,
such work was a significant increase in unit work over
her prestrike duties.
1003
The Supreme Court held in Florida Power Co. v. Elec-
trical Workers IBEW, 417 U.S. 790, 804-805 (1974), that:
[A] union's discipline of one of its members who is
a supervisory employee can constitute a violation of
[Section] 8(b)(1)(B) only when that discipline may
adversely affect the supervisor 's conduct in per-
forming the duties of, and acting in his capacity as,
grievance adjuster or collective bargainer on behalf
of the employer.
The Board in Typographical Union Local 101 (Washing-
ton Post), 242 NLRB 1079 , 1080 (1979), setting the stand-
ard of conduct under which a union may fine a supervi-
sor-member held
the only relevant inquiry is what did the supervisor-
member do during the employer-union dispute.
When a supervisor-member has performed a more
than minimal amount of rank-and-file work during
the period of the employer-union dispute, subse-
quent union discipline for performing such work
cannot give rise to a violation of Section 8(b)(1)(B).
Nor does it matter that the acting supervisors normally
performed bargaining unit work as part of their supervi-
sory duties . The Board, in Washington Post Co., supra at
1080, further stated that
A supervisor-member will not be immune from
union discipline because the amount of rank-and-file
work he performs during the dispute does not in-
crease . Thus, it is irrelevant whether the disciplined
supervisor-member has performed rank-and-file
work, in either the same or different proportion,
than before the employer -union dispute.
Members Jenkins and Murphy, dissenting in part, noted
they would find fines unlawful if the amount of rank-
and-file work performed by the supervisors did not in-
crease during the strike.
The facts fail to establish that Respondent's discipline
imposed against members Beland and Monton adversely
affected their conduct in the performance of their duties
of "grievance adjuster" or "collective bargainer" or any
other supervisory function on behalf of the Employer.
The facts do establish that both Beland and Monton per-
formed substantial unit work during the strike, which
work was a drastic increase of their prestrike unit work.
I therefore conclude that Respondent did not violate
Section 8(b)(1)(A) or (B) by bringing up on charges and
imposing fines upon Beland and Monton.
CONCLUSIONS OF LAW
1. New York Telephone and AT & T Communications
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By imposing fines against the employees set forth in
"Appendix A" and after employees similarly situated for
returning to work at the Employer during the strike that
commenced on 7 August 1983, after these employees re-
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signed their membership in the Respondent , Respondent
violated Section 8(b)(1)(A) of the Act.
4. The foregoing unfair labor practice is an unfair
labor practice affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent engaged in an
unfair labor practice in violation of Section 8(b)(1)(A) of
the Act, I shall recommend that it cease and desist and
take certain affirmative action necessary to effectuate the
policies of the Act, including the refund to the above
employees of any moneys they may have paid as a result
of the fines imposed against them, with interest comput-
ed in the manner prescribed in Florida Steel Corp., 231
NLRB 651 (1977).4 In addition, I shall recommend the
Respondent cease and desist from maintaining the restric-
tion on resignations found invalid and to remove the pro-
vision from its governing documents . Engineers & Scien-
tists Guild (Lockheed-California), 268 NLRB. 311 (1983).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed5
ORDER
The National Labor Relations Board orders that the
Respondent , Telephone Traffic Union, Upstate Local
212, T.I.U., its officers , agents, and representatives, shall
1. Cease and desist from
(a) Maintaining in its governing documents article 5,
section 3 of the constitution of the Telephone Traffic
Union, Upstate Local 212, T.I.U. to the extent it pro-
vides:
Membership in the local union shall be terminated
by:
(a) Resignation submitted in writing to the Secre-
tary Treasurer by certified mail. Such resignation
shall only be effective 30 days subsequent to actual
receipt of such written resignation by the Secretary-
Treasurer. During the aforementioned 30 day
• 4 See generally Isis Plumbing Ca, 138 NLRB 716 (1962).
8 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.
period the individual shall have all rights, duties,
and responsibilities of union membership.
(b) Restraining or coercing employees who have re-
signed from, and are no longer members of, the Re-
spondent in the exercise of the rights guaranteed them by
Section 7 of the Act by imposing court-collectible fines
on such employees because of their postresignation con-
duct in working at New York Telephone and AT& T
Communications during the strike that began on 7
August 1983.
(c) In any like or related manner restraining or coerc-
ing 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) Remove from its governing documents the portion
of article 5, section 3 of its constitution as set forth
above.
(b) Rescind the fines levied against the employees
named in "Appendix A" and other similarly situated em-
ployees because of their postresignation work for the
Employer during the strike that began 7 August 1983
and refund to them any moneys they may have paid as a
result of such find, with interest.
(c) Post at its business office and meeting halls copies
of the attached notice marked "Appendix B."a Copies of
the notice, on forms provided by the Regional Director
for Region 3, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered , defaced, or covered by
any other material.
(d) Sign and return to the Regional Director sufficient
copies of the notice for posting by New York Telephone
and AT & T Communications, if willing, at all places
where notices to employees are customarily posted.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
6 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."