Electrical Workers, Local 45

ELECTRICAL WORKERS LOCAL 45 345 NLRB No. 3 7 International Brotherhood of Electrical Workers, Local 45, AFL–CIO and Adelphia Communica- tions Corp. Case 31–CB–11695 August 19, 2005 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On May 17, 2005, Administrative Law Judge William G. Kocol issued the attached decision. The Respondent filed exceptions and a supporting brief.1 The Charging Party filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions and to adopt the recommended Order as modified.3 The judge found that Union Steward Ken Hudgins was acting as an agent of the Respondent when he threatened employee Debra Bartosch on October 14, 2004, with fines and termination because she filed a decertification petition with the Board. Based on that finding, the judge further found that the Respondent, by Hudgins’ threats, violated Section 8(b)(1)(A) of the Act. We agree with the judge’s findings. In finding Hudgins to be an agent of the Respondent, the judge did not expressly state whether he was relying on a theory of actual authority, apparent authority, or both. In adopting the judge’s finding, we find it unnec- essary to pass on whether Hudgins possessed actual au- thority to act on the Union’s behalf because the judge’s findings firmly establish Hudgins’s apparent authority to do so. As found by the judge, employees contact Hudgins when they want to file a grievance or need information about the Union. Employees also learn of union meet- ings from Hudgins. The Respondent was aware that Hudgins acted on its behalf in these respects because it acknowledges in its brief that Hudgins acts as its “liai- son” with union members. The Respondent also ac- 1 The Charging Party moved to strike the Respondent’s exceptions. The Board denied the motion by Order dated July 12, 2005. 2 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless a clear preponderance of all the relevant evidence convinces us that they are incorrect. Stan- dard 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. 3 We shall modify the judge’s recommended Order and substitute a new notice in keeping with the Board’s standard language in union unfair labor practice cases. knowledges that Hudgins serves as the Union’s “eyes and ears.” As the judge further found, the Respondent permitted Hudgins to co-lead union meetings with Union Business Representative Rick Rogers. In Rogers’ absence, Hudgins led an October 14 union meeting until Rogers arrived. In that capacity, Hudgins first addressed union matters, including charges the Union had filed against the Charging Party, and then turned to the subject of the decertification petition and uttered the threats at issue here. When Rogers arrived at the meeting, he did not assume exclusive leadership but rather joined Hudgins in leading the meeting. Rogers promptly took up the sub- ject of the decertification effort and seconded Hudgins in criticizing that effort, creating the impression that he and Hudgins jointly represented the Union in that regard. When Bartosch asked Rogers why he was not filing the charges against her, Rogers said it was for Hudgins to bring up. When another employee subsequently asked Rogers for additional time to consider withdrawing the decertification petition, Rogers again deferred to Hudgins. Thus, the Respondent “‘cloaked [Hudgins] with sufficient authority to create a perception among the rank-and-file that [Hudgins acted] on behalf of the un- ion.’” Tyson Fresh Meats, Inc., 343 NLRB 1335, 1337– 1338 (2004) (quoting Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351, 355 (6th Cir. 1983)). Based on the foregoing, we affirm the judge’s finding that Hudgins acted as an agent of the Union in uttering threats violative of Section 8(b)(1)(A). ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified below and orders that the Respondent, Interna- tional Brotherhood of Electrical Workers, Local 45, AFL–CIO, Los Angeles, California, its officers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). “(a) Within 14 days after service by the Region, post at its union office in Los Angeles, California, copies of the attached notice marked “Appendix.”4 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 31, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to members are 4 If this Order is enforced by a judgment of the United States court of appeals, the words in the notice reading “Posted by Order of the National 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 8 customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 2. Substitute the attached notice for that of the admin- istrative law judge. APPENDIX 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 Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain on your behalf with your employer Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT threaten to fine or fire you because you filed a decertification petition with the National Labor Relations Board. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights set forth above. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 45, AFL–CIO Nikki Cheaney, Esq., for the General Counsel. Emily Keimig, Esq. (Sherman & Howard, LLC), of Denver, Colorado, for the Employer. Michael Posner, Esq. (Posner & Rosen, LLP), of Los Angeles, California, for the Union. DECISION STATEMENT OF THE CASE WILLIAM G. KOCOL, Administrative Law Judge. This case was tried in Los Angeles, California, on March 14, 2005. The charge was filed October 18, 20041 by Adelphia Communica- tions Corp. (the Employer) and the complaint was issued De- cember 23. The complaint as amended at the hearing alleges that the International Brotherhood of Electrical Workers, Local 45, AFL–CIO (the Union) violated Section 8(b)(1)(A) of the Act by threatening an employee with job loss and a fine for filing and supporting a decertification petition. The Union filed an answer denying that it had violated the Act. The Union also denied the agency status of Ken Hudgins, a union steward; it admits the agency status of Rick Rogers, the Union’s business representative. 1 All dates are in 2004 unless otherwise indicated. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Employer, and Union, I make the fol- lowing FINDINGS OF FACT I. JURISDICTION The Employer, a corporation, provides cable television and data services with a facility in Los Angeles, California, where it annually purchased and received goods valued in excess of $50,000 directly from points outside the State of California. The Union admits and I find that the Employer is engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background As indicated, the Employer provides cable television and data services. At all times material to this case the Employer and the Union have been parties to a collective-bargaining agreement covering a unit of employees described in that agreement and the Employer has recognized the Union as the exclusive bargaining representative of those employees. There are about 17 employees in the unit covering classifications such as customer service and sales representatives and technicians. Rick Rogers is the Union’s business representative. David Jones is the Employer’s general manager. On about July 14, Debra Bartosch, who works as a customer service and sales representative for the Employer, filed a peti- tion with the Board seeking an election to determine whether the Union should be decertified.2 Bartosch was the most senior unit employee, having worked for the Employer for about 24 years. B. Hudgins’ Duties Ken Hudgins works for the Employer and has been union steward for about 5 or 6 years. He was elected steward by the membership and also appointed to that position by the Union’s business manager. Union meetings are held every few months and the employees learn of the meetings from Hudgins. Hudgins and Rogers together conduct these meetings. Employ- ees also contact Hudgins when they want to file a grievance and when they need information about the Union. Hudgins, how- ever, has no authority to decide whether a grievance should be pursued to arbitration. Hudgins routinely discusses grievances with David Jones, the Employer’s general manager. Jones and Hudgins have re- solved informal complaints before they are filed at the initial level. On one occasion, for example, Jones terminated a prac- tice of allowing technicians to take their vehicles home. Hudgins protested but Jones argued that nothing in the contract 2 The complaint alleges and the answer admits that the petition was filed on July 14. In his brief, however, the General Counsel cites Bar- tosch’s testimony that the petition was filed in June. I select the formal pleadings as the more accurate date on which Bartosch filed the peti- tion. ELECTRICAL WORKERS LOCAL 45 9 required him to allow the technicians to take their vehicles home. Later Jones and Hudgins reached a compromise where technicians were again able to take their vehicles home but they acknowledged that this was a privilege that could be revoked by Jones. However, Jones deals with Rogers, not Hudgins, on grievances that are filed at the formal steps of the grievance procedure. C. October 14 On October 14, the employees met at a restaurant. The em- ployees learned of the meeting from a written notice distributed to them by Hudgins. The meeting was set to begin at 6:30 p.m. but actually started around 6:45 p.m. and lasted about an hour. About 15 employees attended and some left before the meeting completely ended. Hudgins began the meeting by reporting to the employees on the status of the discharge of former em- ployee Rick Parker. Hudgins then discussed the charges that the Union had filed against the Employer; those charges in- volved David Jones, the Employer’s general manager. Hudgins then referred to his past service in the military and that he knew going in what he was getting into and when the military no longer met his needs he left. He told the employees they knew that if they wanted to work for the Employer it was a union shop and they would be union members, otherwise they should find work elsewhere. Hudgins then showed the employ- ees copies of the Union’s by-laws with portions highlighted and said that he had a document with him and in that document Hudgins said that he charged Bartosch with a fine of $800. Hudgins also said that Bartosch could lose her job with the Employer if she did not sign another document. Hudgins said he was doing this because Bartosch signed the decertification petition. Hudgins showed the document to Bartosch and asked her to sign it. He commented that it was nothing personal and that he loved Bartosch like a sister. Bartosch explained that the document he wanted Bartosch to sign was to stop the decertifi- cation process. Bartosch refused to sign it. Hudgins gave Bar- tosch a copy of portions of the Union’s bylaws. Included was article 25, entitled “Misconduct, Offenses and Penalties,” sec. 1(e) that reads: Engaging in any act or acts which are contrary to the mem- ber’s responsibility toward the I.B.E.W. or any of its L.U.’s as an institution, or which interfere with the performance by I.B.E.W. or a L.U. with its legal or contractual obligations. The words “Engaging in any act or acts which are contrary to the” were highlighted in yellow. Another part that was partially highlighted in yellow read: Any member convicted of any one or more of the above- named offenses may be assessed or suspended, or both, or ex- pelled. It was about this time that Rogers arrived; he had been de- layed by traffic. Rogers looked at the employees and asked how they could have done this, referring to the decertification peti- tion. Rogers looked at Sarah Johnson, an employee, and said that he thought Johnson was one of the more intelligent ones. Johnson did not reply. Rogers also told Bartosch that the Un- ion’s attorney was highly disappointed in her. This was in ref- erence to the fact that the Union had successfully pursued a grievance to arbitration for Bartosch in 1996. Bartosch re- sponded that she was doing it for everyone and not just for herself and that she was “standing up for her girls.” Bartosch asked Rogers why he was not the person filing the charges against her. Rogers replied that it was for Hudgins to bring up. Another employee, Jana Brown, asked Rogers and Hudgins to allow Bartosch 2 more weeks to decide whether or not to sign the paper that Hudgins had asked her to sign. Hudgins replied that he would give them 1 week. Brown went out the back door of the restaurant to have a cigarette. Bartosch and Rogers joined her. Brown told Rogers that she thought it was very unfair, that she had no intention of voting against the Un- ion and she was not the only person who felt the same way. Bartosch said that she felt embarrassed because Rogers had brought up her earlier arbitration case. Brown again asked for 2 weeks to think about the matter, but Rogers said that it was Hudgins’ decision. Brown returned to the meeting room. This time Hudgins said that the charges had already been sent to the Union but that he would wait 2 weeks for the employees to talk about it. Bartosch asked Rogers what would happen if the charges were filed against her. Rogers answered that Bartosch would have to go to court and if she was found guilty she would have to pay the fine and also might lose her job. Bartosch never re- ceived any charges filed against her with the Union. D. Credibility The foregoing facts are based on a composite of the credible testimony of Sarah Johnson, Debra Bartosch, and Jana Brown. At the time of the hearing Johnson was employed by the Em- ployer doing accounts payable and dispatching. She has worked there for about 2-1/2 years. She is also a member of the Union. As indicated above, Bartosch worked for the Employer for about 24 years and has been a member of the Union for that period of time also. Brown has worked for the Employer nearly 4 years and likewise has been a member of the Union for that same period of time. Brown impressed me with her ability to answer questions about matters within her knowledge and was careful to indicate when she had no knowledge of the in- formation sought by the examiner. Although Bartosch was at times combative, she nonetheless testified in a manner showing her comfort with the facts that she was recounting. Likewise Brown impressed me as someone who had a good recollection of the events of October 14. Moreover, it appears from her testimony that Brown would have been a supporter of the Un- ion had an election been conducted. Importantly, all three wit- nesses in general corroborated each other. While each version of the events of October 14, is somewhat different, I find it only natural that the witnesses would recall parts of the meeting that particularly pertained to them. And because side conversations broke out during the meeting it is plausible that some witnesses may not have heard everything that Hudgins and Rogers said. I have also decided to credit the testimony of David Jones. He impressed me as truthful, especially concerning the details of how he interacted with Hudgins. Finally, I note that Hudgins was not called as a witness. I have considered the testimony of Rogers but I have decided not to credit his testimony to the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 10 extent that it is inconsistent with the facts set forth above. Rogers admitted that there was discussion of the decertification petition and withdrawal of that petition at the October 14 meet- ing. He denied he told anyone that the charges being filed against Bartosch were because of the decertification petition that Bartosch had filed. He claimed that Hudgins said that Bar- tosch might be terminated from membership in the Union for filing the decertification petition, but no other witness made such a claim and it fits too easily into what Hudgins lawfully could have said to the employees to make Rogers’ testimony credible. When asked whether Hudgins said that anyone could be terminated from their job Rogers’ answer was “No, I am not—I do not recall (Hudgins) ever using the term terminated from their job.” Rogers’ difficulty answering that question was palpable and the answer he gave was both hesitant and unbe- lievable. III. ANALYSIS A. Agency Status The Union denies that Hudgins is its agent; it argues that Hudgins was acting as an individual and not as a steward when he made the threats to Bartosch at the October 14 meeting. The evidence shows otherwise. Hudgins was both elected and ap- pointed union steward. As such he had authority to represent the Union both to the employees and to the Employer. As Judge Paul Buxbaum recently noted in Battle Creek Health System, 341 NLRB 882, 893 (2004), The Board has observed that the holding of such an elective office is “persuasive and substantial evidence” of agency. Penn Yan Express, 274 NLRB 449 (1985). By the same to- ken, the Board has placed great probative value on an alleged agent’s position as a steward. In a case whose venerability is underscored by its outdated use of gender-specific language, the Board noted that a steward is “the first union representa- tive the members look to, and the man from whom they take their cues insofar as union policy is concerned.” Teamsters Local 886, 229 NLRB 832 fn. 5 (1977), enfd. 586 F.2d 835 (3d Cir. 1978, quoting Carpenters Local 2067, 166 NLRB 532, 540 (1967). Moreover, Hudgins and Rogers had conducted meetings with employees in the past where they both represented the Union. It was in this same vein that Hudgins spoke at the October 14 meeting. Indeed, it was Hudgins who informed the employees that the Union had arranged the meeting. It was also Hudgins who reported to the employees at the meeting of the status of grievances and charges involving the Union. It was obvious that he was doing this not as an individual but as a representa- tive of the Union. When Hudgins continued then at the October 14 meeting with his threats that Bartosch could be fined and terminated because she had filed the decertification petition it continued to be obvious that he was still acting as an agent of the Union and not as an individual. Communications Workers Local 9431(Pacific Bell), 304 NLRB 446 (1991). In sum, this is not a case where a union member who also happens to be a steward acts as an individual in initiating inter- nal union disciplinary proceedings against another member. Rather, this is a case where the union and the steward gave every indication that the steward was acting on behalf of the union itself in initiating the disciplinary proceedings. I conclude that Hudgins was acting as an agent of the Union within the meaning of Section 2(13) of the Act when he made his com- ments at the October 14 meeting.3 B. Merits A union violates Section 8(b)(1)(A) when it fines a member for filing a decertification petition since “the effect is not de- fensive and can only be punitive to discourage members from seeking access to the Board’s processes.” Molders Local 125 (Blackhawk Tanning), 178 NLRB 208, 209 (1969), enfd. 442 F.2d 92 (7th Cir. 1971). Likewise a union violates Section 8(b)(1)(A) when it threatens an employee with discharge for filing a decertification petition. Sheet Metal Workers Local 18 (Globe Sheet Metal Works), 314 NLRB 1134 (1994). As set forth above, Hudgins made and Rogers reiterated statements that Bartosch could be fired and fined because she filed the decertification. It follows that the Union thereby violated Sec- tion 8(b)(1)(A). CONCLUSION OF LAW By threatening to fine and fire employees because they filed a decertification petition with the National Labor Relations Board, the Union has engaged in unfair labor practices affect- ing commerce within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. REMEDY Having found that the Union has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to 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 recommended4 ORDER 1. The Union, International Brotherhood of Electrical Work- ers, Local 45, AFL–CIO, Los Angeles, California, its officers, agents, successors, and assigns, shall (a) Cease and desist from threatening to fine or fire employ- ees because they filed a decertification petition with the Na- tional Labor Relations Board. (b) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post at its un- ion office in Los Angeles, California, copies of the attached 3 Because I conclude that Hudgins is an agent of the Union, I find it unnecessary to address the argument made by the General Counsel and Employer in their briefs that Rogers ratified Hudgins’ remarks. 4 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. ELECTRICAL WORKERS LOCAL 45 11 notice marked “Appendix.”5 Copies of the notice, on forms provided by the Regional Director for Region 31, after being signed by the Respondent’s authorized representative, shall be posted by the Union and maintained for 60 consecutive days in conspicuous places including all places where notices to em- ployees and members are customarily posted. Reasonable steps shall be taken by the Union to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Union has 5 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” gone out of business or closed the facility involved in these proceedings, the Union shall duplicate and mail, at its own expense, a copy of the notice to all current employees and for- mer employees employed by the Employer at any time since October 14, 2004. (b) Sign and return to the Regional Director sufficient copies of the notice for posting by Adelphia Communications Corp., if willing, at all places where notices to employees are customar- ily posted. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.