Communications Wkrs. Local 5500

COMMUNICATIONS WKRS. LOCAL 5550 553 Communications Workers of America and its Local 5550 (American Telephone and Telegraph Compa- ny) and John D. Bandow. Case 30-CB-250 December 30, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On November 13, 1969, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. The Trial Examiner found that the Respondent violated Section 8(b)(1)(A) of the Act by imposing a fine upon John Bandow for crossing and working behind its picket line without first having warned him that he could be fined for so doing. The Respondent contends, inter alia, that the complaint is barred by the time limitations of Section 10(b) of the Act. For the reasons set forth below, we agree with the Respondent. John Bandow, a member of the Respondent, crossed and worked behind the Respondent's lawful picket line from April 18, 1968, until its removal on May 6, 1968. On May 29, the Respondent notified Bandow by letter that he was charged with violating its constitution and that a date had been set for a hearing. On July 9, 1968, the Respondent's trial court convened, found that Bandow had violated the constitution, and imposed a fine. On October 9, 1968, the Respondent instituted an action in the county court to collect the fine. On November 13, a default judgment was entered against Bandow and, by check of December 10, 1968 , he paid it. Bandow filed charges on February 6, 1969, and March 3, 1969. The Respondent contends that Section 10(b) of the Act is a bar to the complaint because more than 6 months elapsed between the imposition of the fine on July 9, 1968, and the filing of the charge on February 6, 1969. The Trial Examiner rejected this defense on the theory that the complaint alleged a continuing pattern of restraint and coercion, elements of which were the institution of suit, the obtaining of a judgment and Bandow's satisfaction thereof, all of which occurred less than 6 months before the charge was filed. After the Trial Examiner's Decision was issued, we considered the application of Section 10(b) in similar circumstances in International Association of Machin- ists and Aerospace Workers, AFL-CIO (Union Carbide Corporation), 180 NLRB No. 135, reaffirmed 186 NLRB No. 138. In that case, the fines were imposed on November 28, 1967 ; an action to recover them was brought on May 21, 1968 ; and the charge was filed on June 21 , 1968. The General Counsel contended that, although the fines were imposed outside of the 10(b) period, the Union's institution of suit within that period constituted a continuing violation not barred by Section 10(b). In rejecting this theory and finding the complaint to be timebarred, we noted that the institution of legal proceedings to collect the fines is not unlawful in itself, but that such a suit can constitute a violation only if it is found that the original fines were illegally imposed . Because it would be necessary to find that conduct engaged in during the pre-10(b) period violated the Act in order to hold that the later conduct was unlawful , we dismissed the complaint. In the instant case , the charge was filed on February 6, 1969, more than 6 months after imposition of the fine on July 9, 1968 . We reject the contention that the Respondent's institution of legal proceedings to collect the fines within the 10(b) period establishes a continuing violation because, as was the case in International Association of Machinists, supra, "all of the operative facts necessary to make out the claimed violation occurred more than 6 months prior to the filing of the charges ." In these circumstances, we must dismiss the complaint.' CONCLUSION OF LAW Because the complaint in the instant case is based upon an alleged unfair labor practice which took place more than 6 months prior to the filing of the charge with the Board, the complaint must be dismissed pursuant to Section 10(b) of the Act. I Consequently, we do not pass upon any of the other issues in this case 187 NLRB No. 72 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER It is hereby ordered that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act as amended (61 Stat. 136), herein called the Act, was heard at Stevens Point, Wisconsin, on June 24, 1969, pursuant to due notice. The complaint, issued by the representative of the General Counsel for the National Labor Relations Board (herein called the General Counsel and the Board) and based on a charge and first amended charge filed by John D. Bandow (herein called Bandow or Charging Party) an individual, on February 6 and March 3, 1969 respectively, alleged that Communications Workers of America and its Local 5550 (herein called the Union or Respondent) had engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act. Specifically, the complaint alleged that since on or about July 9, 1968, the Respondent, by imposing an excessive fine of $400 plus trial costs on the said Bandow, had restrained and coerced the Charging Party in the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged in and are engaging in unfair labor practices as defined in Section 8(b)(l)(A) of the Act, affecting "commerce" as defined in Section 2(6) of the Act. Upon the entire record in the case (including considera- tion from the briefs received from the General Counsel and Respondent) and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY American Telephone and Telegraph Company is a Delaware corporation engaged in the sale of telephone service at various locations throughout the United States of America, including its Long Line Division facility in Stevens Point, Wisconsin, the only facility involved herein. During the past calendar or fiscal year, either being a representative period, AT & T's gross volume of business was in excess of $100,000 and it purchased and received goods, in interstate commerce, valued in excess of $50,000. I find that AT & T is and has been engaged in "commerce" and in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act. II. THE RESPONDENT AS A LABOR ORGANIZATION Respondent, Communication Workers of America, Local i Article IXX, Section 1 of the Union's constitution provides in part as follows Members may be fined, suspended or expelled by Locals in the manner provided in the constitution for any of the following acts s • • • s (e) Working without proper union authorization, during the period of a properly approved strike in or for an establishmentswhich is being 5550, is admitted to be a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES The material facts are not disputed. John D. Bandow was employed by the American Telephone and Telegraph Company, Long Lines Division at Stevens Point, Wisconsin in "maintenance and operation of electronic switching system." Bandow joined Respondent Union in September 1967 and was a member thereof on April 18, 1968, the date upon which the Union began a lawful and union authorized strike against AT & T at its Stevens Point facility. John Zelhofer, vice president of Local 5550, informed Bandow of the strike scheduled to begin at 2 p.m. on the 18th and "explained to him that he was a new member, that it would be to his advantage if he were to honor this picket line rather than cross the picket line." Zelhofer did not say anything to Bandow about the possibility of being fined if he cross the picket line much less about the possibility of any court enforcement of such a fine. Notwithstanding Zelhofer's plea Bandow did not honor the Union's picket line but continued to work during the entire period of the strike which lasted until May 6. Although the Union's constitution makes provision for penalizing a member for crossing its duly established picket ]mes,i according to Bandow's undenied and credited testimony he was never given a copy of the union constitution prior to the strike. Indeed, it was not until after the strike terminated that Bandow had any information that he might be subject to union censure of any kind,2 particularly any kind involving "financial consequences" for his failure to join his fellow union members in the strike. In this context on May 7, 1968, at a meeting of the Union's executive board the following action was ap- proved: MOTION to charge any person who crossed picket lines and worked during the strike with violation of Article 19 of the CWA constitution. A registered letter is to be sent notifying any person so charged. Motion approved. RECOMMENDED that the minimum fine imposed on any person found guilty of violating Section 19 of the CWA constitution be wages earned during the strike and suspension from the local. TRIAL COURT selected the following [sic] person's for trial court duty from a list of qualified members. They are: Chairman, Sherri Andregg, Madison; Prosecutor, James R. Smith, Milwaukee; (sic) Juror's, Joseph Werner Appleton; Fred Heyman Milwaukee; and Paul B. Sobieck, Jr. Madison. President Quigley was instructed to set up a meeting as soon as possible with the Trial court chairman and Mr. Ed Pell, Wisconsin struck by the union or local In addition the constitution sets forth in detail the procedure for disposing of charges against members including provisions for protection of their rights 2 The only such intimation he received during the strike was from individual pickets who indicated to him that "if [he] worked they were going to get [him ] " COMMUNICATIONS WKRS. LOCAL 5550 555 State Director to find out the proper procedure for holding a trial. On May 29 Bandow was notified by letter of the charges against him and the date of his hearing at which he was assured the right to be heard on his own behalf; "the right to select a member of the local as counsel, the right to produce witnesses, present documentary evidence and .. . the opportunity to cross-examine witnesses." The letter also indicated that if he required more time to prepare his defense a reasonable continuance could be arranged. Bandow took no action whatsoever with respect to this matter and on July 9, 1968, the union trial court convened and found Bandow guilty of violating article XIX of the CWA constitution and imposed a penalty of $400 which included salary earned during the strike, plus union trial costs, and recommended that he be suspended from the Union until such time as he could be reinstated as a member in good standing.3 Having received no payment of its fine or any communication about it from Bandow, on October 9 the Union began an action against Bandow in the county court for $400 plus costs. On November 13 a default judgment was entered against Bandow in the amount of $433.33. On December 5 a garnishment action was commenced against Bandow and on December 13 through his attorney Bandow made payment of the $444 to the Union. Contentions and Conclusions In its defense Respondent raises four questions: (1) Whether or not the complaint is barred by the 6-month limitation set forth in Section 10(b) of the Act; 4 (2) whether the Board has jurisdiction over the subject matter of the complaint; (3) whether the judgment of Portage County Court renders moot any subsequent Board proceeding; and (4) whether the fine in question was reasonable. Only one and four need any comment. Respondent contends that the issuance of the complaint violates Section 10(b) of the Act because more than 6 months elapsed between the filing of the original charge on February 6, 1969, and the imposition of the fine on July 9, 1968. In this connection Respondent's position is that the General Counsel did not allege the collection of the fine (as distinguished from the imposition of the fine) as an unfair labor practice and that no "continuing restraint or coercion was . . . proved" as a result of the "imposition" of the fine. Respondent reads the complaint too narrowly and technically and in addition misconstrues the facts. Not only did the General Counsel allege the imposition of the fine in the complaint but he also alleged in the same paragraph the obtaining of the judgment on it by the Union on November 13 and the satisfaction of the judgment on December 10 by the Charging Party. Moreover, he also alleged in the complaint that all of the foregoing conduct (which in fact occurred) amounted to continued restraint and coercion 3 The court (which deliberated on Bandow's case almost the entire day) estimated his earnings to be from $225 to $250. Actually Bandow's earnings during the strike were $299.94. The trial costs were $182.93 consisting of $20 for transportation , $ 11 in meals, $ 139.60 in lost wages and $12.33 for room rental. 4 Section 10(b) states in part: "... IN ]o complaint shall issue based against the charging party in violation of Section 8(b)(1)(A) of the Act. Respondent's 10(b) defense is rejected.5 Both the Respondent Union and the General Counsel rely on the Supreme Court decision in Allis-Chalmers Manufacturing Company, 388 U.S. 182, to support their conflicting contentions. The General Counsel, while admitting that the court in that case held "that a reasonable fine of a member to require support of a union's strike is not violative of Section 8(b)(1)(A)," maintains nevertheless that the fine here exceeds the reasonable limits permitted in Allis-Chalmers and is thus outside the reach of that decision. Although refusing to say what would be a reasonable fine in the circumstances of this case, the General Counsel contends that "the fine herein was clearly excessive and violative of Section 8(b)(1)(A) of the Act" for the following reasons: (1) That the fine exceeded both Bandow's strike earnings or normal earnings for a comparable period; (2) That Bandow was not warned, either prior to or during the strike, of the possibility of being fined for crossing the picket line; (3) That Bandow did not perform any work during the strike that would have been performed by his fellow employees-who respected the picket line-but for the strike; (4) The absence of any circumstances that even arguable might justify the imposition of so large a fine. The Allis-Chalmers opinion has already been the main subject of discussion in four Trial Examiner's Decisions now pending before the Board. These decisions are Local 205, Lithographers and Photoengravers International Union, AFL-CIO (the General Gravure Service Co., Inc.), Case 22-CB-1273, issued on July 22, 1968, by Trial Examiner Herbert Silberman; Booster Lodge No. 405, International Association of Machinists and Aerospace Workers, AFL-CIO (the Boeing Company), Case No. 15-CB-779, issued on December 30, 1968, by Trial Examiner Ramey Donovan; Communication Workers of America, Local 6222 (John H. Reinbold, an Individual), Case 23-CB-888, issued on May 12, 1969, by Trial Examiner James T. Barker; and Communication Workers of America; Local 6135 (Judith Gullion, et al.), Cases 23-CB-898, 899-2, 897-3, issued on May 12, 1969, by Trial Examiner James T. Barker. In his Boeing Company decision, Trial Examiner Donovan concluded after a lengthy and detailed analysis of the Court decision that on the basis of it a definitive standard could and should be adopted for determining the reasonable limits within which a union could fine its members for continuing to work during a lawful strike. To this end he wrote as follows: It is the Examiner's opinion that a fine of 35 percent or less of a strikebreaker's earnings at his regular straight time rate is, presumptively, a reasonable fine . We also believe that a fine of 80 percent or less of overtime or premium pay, earned by a strikebreaker, which he would not normally have earned but for the fact that his upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board... . 5 See Local 248, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO et al. (Allis-Chalmers Manufacturing Company), 149 NLRB 67, 76. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fellow union members were engaged in an authorized strike, presumptively, is a reasonable fine. We believe that a total fine embracing some earnings at the 35 percent or less rate and some earnings at the 80 percent or less rate is, presumptively, a reasonable fine. As another prerequisite Trial Examiner Donovan also would include in his defmitive standards of reasonableness under the Allis-Chalmers decision the requirement "that a reasonable fine entails an antecedent warning that fines will be imposed for working during the particular strike." While I have no opinion as to the validity of Trial Examiner Donovan's formula as a whole,6 I am convinced that the standards of reasonableness referred to by the Court in the Allis-Chalmers decision encompass Donovan's suggested requirement that notice be given by a union before it can legally fine the members for crossing its own picket lines and working during its lawfully called strikes. Here Bandow was given no such warning. This failure on the Union's part, in my opinion, takes its fine of Bandow out of the protective reach of Allis-Chalmers and puts the union in violation of Section 8(b)(1)(A) of the Act. This I find notwithstanding that in all other procedural respects the Union's conduct was exemplary and without fault. And this result in my opinion would also obtain even if it be determined that the Union's fine of Bandow was reasona- ble in amount-a matter I find it unnecessary to decide. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of American Telephone and Telegraph Company including its Long Line Division facility in Stevens Point, Wisconsin, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(IXA) of the Act, I shall recommend that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. Having found that Respondent Union imposed and collected a fine against John D. Bandow for working behind its picket lines during a legally established union strike without having given him adequate warning or notice that such action would be taken against him, thus coercing him and interfering with his rights guaranteed by Section 7 of the Act, I shall recommend that his fine be withdrawn and rescinded and that Bandow be reimbursed for the amount of money he was fined plus interest at the rate of 6 6 Trial Examiner Barker concurred with it with some minor modification. 7 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and conclusions of law and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Communications Workers of America, Local 5550 is a labor organization within the meaning of Section 2(5) of the Act. 2. American Telephone and Telegraph Company including its Long Line Division facility in Stevens Point, Wisconsin, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By imposing and collecting a fine of $400 plus costs (which totalled $433.33) against John D. Bandow for working behind the picket line at the American Telephone and Telegraph Company Long Line Division facility in Stevens Point, Wisconsin, during a duly authorized strike of the Union, the Union restrained and coerced John D. Bandow in the exercise of rights guaranteed in Section 7 of the Act and thereby violated Section 8(b)(l)(A) of the Act. 4. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of facts and conclusions of law, and upon the entire record in this case, it is recommended that Respondent, its officers, agents, and representatives shall: 1. Cease and desist from: (a) Fining members for working behind a picket line during a lawful strike authorized by the Union without giving them adequate warning or notice that such action will be taken against them for such conduct. (b) In any like or related manner restraining or coercing its members in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Withdraw and rescind the fine levied and collected against John D. Bandow for working from April 18 until May 6, 1968. (b) Reimburse John D. Bandow for the amount of money he was fined plus interest at the rate of 6 percent per annum. (c) Correct all pertinent records relating to the trial and the fine of John D. Bandow to reflect the foregoing modification and inform him, in writing, of the action taken. (d) Post at its office and meeting halls and at the American Telephone and Telegraph Company Long Line Division facility in Stevens Point, Wisconsin (the Company willing), copies of the attached notice and marked "Appendix." 7 Copies of said notice on forms provided by findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and all objections thereto shall be deemed waived for all purposes In the event COMMUNICATIONS WKRS. LOCAL 5550 557 the Regional Director of the National Labor Relations Board for Region 30, after being signed by an authorized representative of the Respondent Union, shall be posted in, conspicuous places, at said locations, including all places where notices to members and employees are customarily posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. (e) Notify the Regional Director, in writing, within 20 days of the receipt of this Decision, what steps it has taken to comply herewith.8 that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 8 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 30, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: After a trial in which the Union and the General Counsel of the National Labor Relations Board were represented by attorneys, a Trial Examiner of the Board, who heard the evidence, has found that we have violated the National Labor Relations Act in certain respects, and has recommended that we post this notice and comply with its terms. WE WILL NOT restrain or coerce employee members of our Union in the exercise of their rights guaranteed in Section 7 of the Act to refrain from engaging in union activities, such as a strike, by imposing and collecting fines against them for such conduct without giving them adequate notice or warning that such action will be taken against them for such conduct. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the National Labor Relations Act. WE WILL withdraw and rescind the fine we imposed and collected against John D. Bandow for working from April 18 to May 6, 1968, during our strike against the American Telephone and Telegraph Company Long Lines Division, Stevens Point, Wisconsin. WE WILL correct the records of the July 9, 1968, union trial of John D. Bandow and correct other union records to show that the fine has been withdrawn and rescinded and will notify Bandow of such action in writing. WE WILL also reimburse John D. Bandow for the full amount of the fine and costs which he paid together with interest at 6 percent per annum. Dated By COMMUNICATIONS WORKERS OF AMERICA, LOCAL 5550 (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 2nd Floor Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 414-272-3861.