CWA, Local 9511

CWA, LOCAL 9511 433 Communications Workers of America , Local 9511 (Pa- cific Telephone and Telegraph Company) and Son- dra J. White Communications Workers of America, Local 9510 (Pa- cific Telephone and Telegraph Company) and James K. Smith. Cases 21-CB-3488 and 21-CB-3491. February 8, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Board, granting permission and time for filing of briefs. Thereafter, General Counsel, Charging Parties, and Respondents filed briefs with the Board Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three-member pan- el. Upon the basis of the facts stipulated to the Board, the exhibits, the briefs, and the entire record in these cases, the Board makes the following: FINDINGS OF FACT Upon a charge duly filed on October 28, 1969, and a charge filed on October 30, 1969,' the General Counsel of the National Labor Relations Board, by the Regional Director for Region 21, issued an Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing, dated January 13, 1970, and amended on January 14, 1970, against Respondents. The complaint alleged that Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and Section 2(6) and (7) of the National Labor Relations Act, as amended, by threatening to sue certain employees of Pacific Telephone and Telegraph Company, and by the institution of legal action to collect arbitrary and excessive fines previously levied against Sondra J. White, William E. White, Ralph F. Walton, members at all times material herein of Respondent Local 9511, and Neva G. Oakden, a member at all times material herein of Respondent Local 9510, for their failure to engage in concerted activities. Respondents filed an answer, dated January 21, 1970, to the consolidated complaint denying the commission of any unfair la- bor practices and affirmatively pleading that the con- solidated complaint failed to state a cause of action and that the charges were not timely filed. On March 25, 1970, Respondents, Charging Par- ties, and counsel for the General Counsel filed with the Board in Washington, D.C., a motion to transfer proceedings to the Board. The motion stated that the parties agreed that the stipulation of facts, and the exhibits appended thereto, should constitute the en- tire record; that the parties waived their right to a hearing before a Trial Examiner and the issuance of a Trial Examiner's Decision; and that these cases be submitted directly to the Board for findings of fact, conclusions of law, and the issuance of a Decision and Order. On March 26, 1970, the Board approved the parties' motion and ordered the cases transferred to the ' The Charging Party in Case 21-CB-3491 is the attorney for alleged discnmmatee Neva G Oakden 1. JURISDICTION Pacific Telephone and Telegraph Company, herein called Pacific Telephone, a California corporation, is • an interstate public utility engaged in transmitting and receiving intrastate and interstate communica- tions and providing communication services, with facilities and places of business in, among others, Es- condido, Oceanside, and Balboa, California. Pacific Telephone, in the course and conduct of its business, annually purchases and receives at its facilities within the State of California goods, materials, and supplies originating outside the State of California valued at a substantial amount. It annually receives, in the course and conduct of its business, gross revenues in excess of $250,000 of which in excess of $50,000 is received from the transmission of interstate telephone commu- nications. Accordingly, we find that Pacific Telephone is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATIONS INVOLVED Respondent Communications Workers of America, Local 9511 and Respondent Communications Work- ers of America, Local 9510, each is now and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Facts The stipulation of facts indicates that commencing in March 1968, the Bell Systems operating companies, one of which is Pacific Telephone, the Western Elec- tric Company, Inc., and the various communication unions, including Communications Workers of 188 NLRB No. 63 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, hereinafter CWA, and Federation of Wom- en Telephone Workers, hereinafter FWTW, an inde- pendent union representing traffic department employees of Pacific Telephone in Southern Califor- nia, engaged in contract negotiations with a view to- ward reaching new agreements under wage reopener provisions in their respective bargaining agreements. Respondent Local 9511 and Respondent Local 9510, which represent plant department employees of Pacif- ic Telephone in Southern California and which were parties to collective-bargaining agreements with Pa- cific Telephone, were not involved in the wage reo- pener discussions. In April 1968 various communication unions, including CWA and FWTW, began a nationwide strike against Bell Systems oper- ating companies, including Pacific Telephone. While neither Respondent Local struck, Respon- dent Local 9510, through its executive board, directed its members, on March 17, 1968, to honor all picket lines which might be established against Pacific Telephone; Respondent Local 9511 voted at its reg- ular membership meeting on April 25, 1968, to honor all picket lines established during the strike. On April 18, 1968, duly authorized picket lines were established by CWA Local 9590 at the Pacific Telephone facility where Oakden worked. Oakden re- fused to walk out when members of her Local, Re- spondent Local 9510, honored the picket line, and she remained on the job until May 3, 1968. On April 26, 1968, FWTW struck Pacific Telephone at the facilities where Sondra White, William White, and Walton were employed. Each crossed the FWTW picket line and worked during the strike. All picketing ceased on May 5, 1968. Respondent Local 9511 separately advised Sondra White, William White, and Walton that charges had been brought against them for violations of article XIX, section 1, of the constitution of the Communica- tions Workers of America. Respondent Local 9510 similarly advised Oakden that charges had been brought against her for violation of the identical pro- vision of the CWA constitution. Thereafter, Sondra White, William White, and Walton were found guilty by trial courts of Respondent Local 9511; Oakden was found guilty by trial court of Respondent Local 9510. All were fined, the amount of which was calcu- lated by approximating the employee's total earnings while working behind the picket line and adding a token amount.' Sondra and William White appealed the decisions of the trial courts, culminating in appeals to the con- 2 Sondra White worked for 6 days during the strike and earned $139.10; she was fined $ 161 William White worked for 5 days during the strike, earning $147. His fine totaled $176 Walton also worked for 6 days and earned $160. He was fined $ 176. However, although Oakden earned $227 while working during the strike, she was only fined $150 vention of the Communications Workers of America. By June 30, 1969, both Sondra and William White were informed that the convention had, on or about June 20, 1969, denied their final appeals. Respondent Local 9511 contacted Sondra and William White by letter on or about June 20, 1969, and demanded full payment of the fines, advising that court action would be commenced if payment was not received. Walton notified Respondent Local 9511 on July 8, 1968, that he would abide by the trial court's decision. By May 21, 1969, Walton had not yet tendered payment of the fines in a manner satisfactory to Respondent Local 9511, which on that date notified Walton that court action would be instituted if payment in full was not received. On or about August 20, 1969, Sondra White, William White, and Walton were served with a sum- mons and complaint on behalf of Respondent Local 9511 in the Municipal Court, North County Judicial District, County of San Diego, State of California. The proceedings were stayed on January 14, 1970, pending final determination by the Board of the un- fair labor practice charge filed in Case 21-CB-3488. Oakden timely appealed the decision of the trial court of Respondent Local 9510 to the membership of the Union. The trial court's decision was affirmed in full in March 1969. No further appeal was taken. On September 24, 1969, Oakden was notified by Respon- dent Local 9510 that it would seek collection of the fine in small claims court unless she paid the sum assessed by the trial court. Respondent Local 9510 has not attempted to collect or enforce the fine against Oakden by the institution of legal proceedings. B. Contentions of the Parties General Counsel contends that the fines were arbi- trary and unreasonable and therefore constituted un- lawful restraint and coercion within the meaning of Section 8(b)(1)(A). The Charging Parties argue that by the inclusion of a grievance and arbitration clause in the collective-bargaining agreement Respondents had, by implication, agreed not to strike; that the work stoppage was therefore contrary to the bargain- ing agreement; and that fines assessed for honoring a lawful provision of a bargaining agreement are clearly unlawful restraint and coercion. Further, the Charg- ing Parties argue that the complaints are timely, since the final notices of the payments due, the threats to sue, and the institution of legal proceedings to collect the fines occurred within the 10(b) period. It is Re- spondents' position that the issuance of complaints is time barred by Section 10(b); that the fines were im- posed for crossing a lawful picket line; that the institu- tion of legal proceedings to collect such fines does not constitute unlawful interference; and that the fines were reasonable in amount. CWA, LOCAL 9511 435 Conclusion The charges, the trial court proceedings, the initial assessment of the fines by Respondent Local 9511 and Respondent Local 9510, and the resolution of Oakden's appeal to the membership of Respondent Local 9510, all occurred more than 6 months prior to the filing of charges herein. Walton took no appeal of the trial court's decision and Oakden did not pursue her appeal beyond the first stage. Thus, all the opera- tive facts necessary to make out the alleged 8(b)(1)(A) violation by Respondents against Walton and Oak- den took place outside the 10(b) period. The Board has recently held that it will not base an 8(b)(1)(A) violation upon a respondent's pre-10(b) levied fine.' This is precisely what the General Counsel and Charging Party would have us do in this instance, as Respondents' only post-10(b) action with regard to the fines of Walton and Oakden had been threats to sue and the institution of legal proceedings to collect Walton's fine. For this reason, Members Brown and Jenkins shall dismiss those portions of the consolidat- ed complaint alleging violations of Section 8(b)(1)(A) by Respondents against Walton and Oakden. Sondra and William White did not acquiesce in the decisions of Respondent Local 9511's trial courts, and timely pursued their rights of appeal as provided in CWA's constitution, terminating in appeals to the an- nual CWA convention. The convention is empowered by the constitution to affirm, reverse, or modify deci- sions that come before it. Since Sondra and William White appealed, the fines levied against them did not become final until the Union's internal appeal proce- dures were exhausted. Their appeals were denied by the convention on or about June 20, 1969, a date well within the 10(b) period. Thus, in contrast with the mere attempts to collect the established fines from Walton and Oakden, the convention's review of Re- spondent Local 9511's trial court decisions regarding Sondra and William White was a procedural step nec- essary to establish with finality the propriety of the fines themselves. Therefore, the cause of action claimed by Sondra and William White is not predicat- ed solely upon Respondent Local 9511's pre-10(b) actions. Accordingly, we must consider the merits of that portion of the consolidated complaint alleging 8(b)(1)(A) violations by reason of the fines imposed against Sondra and William White by Respondent Local 9511. As previously noted, the consolidated complaint alleges that the fines are "arbitrary, unreasonably large, excessive, and constitute unreasonable disci- pline," and that, by demand for payment of the fines and by taking action to implement the collection of the fines, employees have been subject to unlawful restraint and coercion in violation of Section 8(b)(1)(A). No claim is made that Respondent is seek- ing to enforce an arbitrary, capricious, or otherwise unlawful internal rule.4 We have previously held that the reasonableness or excessiveness of a fine imposed upon a union member for breach of a lawful internal rule is not relevant to a determination of whether Section 8(b)(1)(A) has been violated.5 No other reasons are advanced, and we perceive none, for find- ing Respondents' conduct violative of Section 8(b)(1)(A) on grounds of "arbitrariness." According- ly, we shall dismiss those portions of the consolidated complaint alleging violations against Sondra and Wil- liam White .6 As nothing in the reason for the fines or in the method of enforcement cognizable under 8(b)(1)(A) has been advanced, we shall dismiss the complaint in its entirety. ORDER It is hereby ordered that the consolidated com- plaint herein be, and it hereby is, dismissed in its entirety. We find no ment in Charging Parties' contention that the grievance and arbitration clause within the bargaining agreement between Respondent Lo- cal 9511 and Pacific Telephone is the functional equivalent of a no-stake, no-lockout clause for purposes of rendering the striking employees' conduct unprotected. Thus, Respondent Local 951 l's decision to honor picket Imes established by sister labor organizations was not contrary to its collective- bargaining agreement with Pacific Telephone. Cf Local 174, Teamsters, etc v. Lucas Flour Co, 369 U S 95 5 International Association of Machinists and Aerospace Workers, AFL- CIO, Local Lodge No 504 (Arrow Development Co), 185 NLRB No. 22. ' International Association of Machinist and Aerospace Workers, AFL-CIO 6 Chairman Miller would rely on Arrow Development Co., supra, in dismiss- (Union Carbide Corporation) 180 NLRB No. 135, reaffirmed 186 NLRB No. ing the complaint as to all four employees He does not find it necessary to 138. pass on the 10(b) issue