Federation of Telephone Workers

FEDERATION OF TELEPHONE WORKERS 461 Federation of Telephone Workers of Pennsylvania, Local 58 (Bell Telephone Company of Pennsylva- nia) and Nancy S. Bernola. Case 6-CB-2048 December 7, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On August 13, 1971, Trial Examiner Louis Libbin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, and the General Counsel filed a brief in answer to certain of Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Federation of Telephone Workers of Pennsylvania, Local 58, Rochester, Pennsylvania, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION the unfair labor practices, the complaint alleges, and Respondent's duly filed answer denies, that Respondent caused and/or attempted to cause the Bell Telephone Company of Pennsylvania to refuse to award overtime to its employee Bernola because of her lack of membership in Respondent and/or because she filed charges against Respondent with the Board- and thereby violated'Section 8(b)(2) and 8(b)(1)(A) of the Act. This case was tried before me at Pittsburgh, Pennsylvani- a, on May 24 and 25, 1971. All parties appeared at the trial and were given full opportunity to participate in said trial. On June 28, 1971, the General Counsel and Respondent filed briefs, which I have fully considered. For the reasons hereinafter indicated, I find that Respondent engaged in conduct violative of Section 8(b)(2) and 8(b)(1)(A) of the Act. Upon the entire record in the case,' and from my observations of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Bell Telephone Company of Pennsylvania, herein called the Company, a Pennsylvania corporation with its principal office located in Philadelphia, Pennsylvania, provides communications services throughout Pennsylvania and, in conjunction with other telephone companies, provides interstate communications services throughout the United States. During the 12-month period immediately preceding the issuance of the instant complaint, the Company's gross volume of business exceeded $1 million; during the same period, the Company received goods and materials, valued in excess of $50,000, directly from points located outside the Commonwealth of Pennsylvania for use at its Pennsylvania facilities. Upon the above admitted facts, I find, as Respondent's answer further admits, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE STATUS OF RESPONDENT UNION The complaint alleges, the answer admits, the record shows, and I find that the Respondent Union named in the caption of the complaint is a labor organization within the meaning of Section 2(5) of the Act. STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on December 7, 1970, and February 4, 1971, by Nancy S. Bernola, an individual, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 6 (Pittsburgh, Pennsylvania), issued a com- plaint, dated March 30, 1971, against Federation of Telephone Workers of Pennsylvania, Local 58, herein called Respondent or Respondent Union. With respect to 1 I hereby note and correct the following obvious inadvertent errors in the typewritten transcript of the testimony: On 1 8 of p 17, "proceeding" is corrected to "succeeding"; on 1. 20 of p 173, the number "2" is corrected HI. THE UNFAIR LABOR PRACTICES A. Introductiorn,• the Issues The Company has had successive collective-bargaining agreements with the Federation of Telephone Workers of Pennsylvania, herein called FTWP, since 1939. Nancy Bernola, the Charging Party herein, has been employed by the Company since about 1955 and became a member of Respondent Union about 1959. In June 1968, she was to "1"; and on 1 17 of p. 216, "Hookmck" is corrected to read "Hoodnick." 194 NLRB No. 80 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD notified that intraunion charges had been preferred against her for failing to appear for her assigned picket duty that spring when Respondent was engaged in an economic strike against the Company. In November 1968 and again in January 1969, she was notified that on November 14, 1968, a union trial court had found her in violation of FTWP's constitution and fined her $45. In November or December 1969, Bernola'informed Respondent's then Vice President Gilbert Steele that she would "drop out" of the Union rather than pay the fine because she felt the fine was "unfair." On October 13, 1970, pursuant to a legal action taken by Respondent through its President David Saras to collect the $45 fine, a hearing was held before a justice of the peace who issued a judgment in favor of Respondent 3 days later. However, Bernola filed charges with the Board against Respondent on October 13, 1970, immediately after the conclusion of the hearing before the justice of the peace. That charge, which was withdrawn a few months later, alleged that Respondent "restrained and coerced employ- ees" of the Company within the meaning of Section 8(b)(1)(A) of the Act. The charge named Saras as the union representative to contact and was received by him on October 15. On October 27, 1970, Foreman George Wilcox assigned some overtime work to Bernola, Immediately upon being informed of the overtime, Respondent's President Saras had a conversation with Foreman Wilcox in which he sought to have Wilcox award the overtime work to certain other employees instead of to Bernola. As a result of this conversation, the Company did not award the overtime work to Bernola. The principal issue litigated in this proceeding is whether, in seeking to have the Company award Bernola's overtime assignment to other employees, Saras was motivated by Bernola's lack of membership in Respondent and/or because she filed charges against Respondent with the Board, as the General Counsel contends and the complaint alleges, or by a desire to have the Company comply with what was Respondent's understanding of the agreement which FTWP had with the Company on the distribution and equalization of overtime, as Respondent contends. Also involved are the usual credibility issues. B. The Incident Involving Overtime Work 1. The undisputed facts The facts hereinafter set forth are based on credited testimony which is either undemed or admitted. At the time of the instant trial, Nancy Bernola had been employed by the Company about 15 years, the last 7 years in the Company's Rochester, Pennsylvania, office. She was classified as a field clerk for the last 3 years. The Company has a service center located on the second floor of its Rochester office under the ultimate supervision of Foreman George Kredel. Reporting directly to him in the service center are Control Foreman Wilcox and Foreman Russell. Employees in the service center are classified as field clerks, general field clerks, desk men, and facilities assigner. In this group are about five field clerks and six general field clerks, a more skilled and higher paid classification. In 1968 the Company created the position of control foreman's clerk in its service center. This position merely required the performance of certain specified duties and retained the classification ,of field clerk. Bernola was the first one assigned to this position which she occupied on a regular basis for about 1 year until July 1969. Thereafter, she trained the girls who subsequently occupied that position. She herself continued in the classification of a field clerk, performing other duties on a regular basis outside the service center on the third floor under the supervision of Foreman Farrell. However, she was frequently asked to, and did, perform the control foreman clerk's work on an overtime basis and did so for the most part in the service center on the second floor. At the time of the instant trial, Rose Avolio had been the regular full-time control foreman's clerk for over a year. During her tenure, whenever overtime was required to be performed in the work of the control foreman's clerk, it was the consistent established practice of the service center control foreman to award the assignment first to Rose Avolio because the incumbent on the job had always been given first preference, then, if she refused it, to Beverly Broadie, another field clerk regularly employed in the service center who had been the control foreman's clerk for about 6 months before Avolio and who was historically lower in overtime than Bernola, and finally, if she refused it, to Bernola who was then regularly employed as a field clerk outside the service center. As already noted, all three were classified as field clerks. On October 27, 1970, Service Center Control Foreman Wilcox approached Rose Avolio and asked if she could work overtime to complete a report that she had been working on. Avolio refused the overtime for personal reasons. Wilcox then approached Beverly Broadie and asked if she could work overtime to complete the report. When Broadie also refused, Wilcox approached his supervisor, Foreman Kredel, and explained that the report in question had to be completed on an overtime basis and that the overtime had been refused by employees Avoho and Broadie. Wilcox suggested that he ask Bernola to do the work on an overtime basis. Kredel suggested that before doing so Wilcox should first go back and ask Avolio and Broadie again. Wilcox did this that same day, and again both women refused the overtime. Wilcox then immediate- ly went upstairs directly to Bernola, told her what had to be done on Avolio's report, asked if she could work overtime in the evening and any additional overtime, including Saturday, if necessary to get the work done by the end of the month. Bernola agreed to do so. Later that afternoon, Respondent's President Saras, who was employed as a desk man in the service center, had a conversation with Foreman Wilcox about the overtime assignment awarded to Bernola. At the conclusion of the conversation, Wilcox went to Kredel, explained the situation to him, and it was decided that they "shouldn't 'allow Mrs. Bernola to do the work." Kredel then instructed Foreman Farrell that same day to tell Bernola that she was not to perform the overtime work that had been assigned to her by Wilcox. Farrell thereupon informed Bernola not to FEDERATION OF TELEPHONE WORKERS work the overtime unless otherwise notified because the Company was having "trouble." After Bernola left work that day, Kredel left a note on her desk instructing her not to perform the overtime work in case she came in early the next morning. He also telephoned her home that evening and either told her or left word that she was not to do that work. The next day, Kredel suggested that Wilcox go back and reask Avolio and Broadie to do the work. However, before he could do so, Avolio came to Wilcox and, for unexplained reasons, volunteered to do the overtime work. Wilcox agreed. The work was performed in the evening during that week and completed on Saturday.2 2. The disputed testimony There is a conflict in the testimony relating to the substance of the October 27 conversation between Saras and Wilcox concerning the overtime in question. Foreman Wilcox testified that he was approached by Saras in the service center and that the following conversation ensued: Saras stated that he was aware of the fact that Wilcox had asked Mrs. Bernola to come down and do the overtime work, that he did not think this was "a good idea," and that he thought "the people would resent it." Wilcox thereupon explained that this report had to be done, that he had asked Mrs. Avolio and Mrs. Broadie, that they both had refused to do the work, and that, since the report had to get done and there was nobody else to do it, Mrs. Bernola was going to do it. Saras then warned Wilcox that, if he brought Mrs. Bernola in to do the work, "the people in the service center would not be working." When Wilcox asked Saras if he was "threatening me with a walkout," Saras replied that Wilcox "could take it any way that I wished." That ended the conversation. Wilcox further testified on cross-examination that no one else was involved in his conversation with Saras, although others were present in the room, that he did not know where Wanda Gossard (the job steward for female, employees) was at that time, and that Gossard never told him about particular employees in the service center who were trained as control foreman's clerks. Respondent's President Saras testified that in the after- noon of October 27 Avolio came and told him that there would be overtime on her job in the service center and that someone out of the service center would be coming in, "possibly Mrs. Bernola," that he then asked Job Steward Gossard if she knew what was going on, that when she replied in the negative they both went to Wilcox and the following conversation ensued: Saras asked Wilcox if there was going to be overtime on the control foreman clerk's job that evening. When Wilcox gave an affirmative answer, Saras "asked him who." Wilcox answered that it was Mrs. Bernola. Saras then called Wilcox's attention to the fact that there were others in the service center with far less overtime and asked if they were considered. Wilcox asked, "are you doing this because of Mrs. Bernola?" Saras replied, "definitely not," and added that "the people in the service center should be equalized, first." Gossard men- tioned Cathy Hoodnick and Dorothy Popik as service 463 center employees to be considered for that work. After some further discussion, Wilcox stated that he would get back to them later. Saras denied telling Wilcox that the people in the service center would not be working if Mrs. Bernola was brought in to do the work. Job Steward Gossard testified that she accompanied Saras to Wilcox and that she was present during the entire conversation with Wilcox. Her testimony in substance corroborates Saras' version of the conversation with Wilcox. She testified to the following additional statements during the conversation: Wilcox had stated that he was unable to get anybody to do the work and that he had asked Avolio who refused to do it. Gossard told Wilcox that she knew that Hoodnick and Popik had done that work in the past. Wilcox replied that he did not realize this, that he would have to think about it, and that he would "get back to you people on it." In response to counsel's question as to whether Saras at any time said that the "people in the service center wouldn't work or would stop working" if Mrs. Bernola was called in, she testified, "No, sir." In response to counsel's 'further question as to whether "any statement like that was made," she testified "I did not hear any." 3. Credibility resolution The foregoing disputed testimony merely raises a factual issue, the determination of which depends wholly, on a credibility resolution. I credit the testimony of Foreman Wilcox and find the facts to be substantially as hereinabove related in his testimony. I further find that Saras' statement that "the people in the service center would not be working" if Wilcox brought Mrs. Bernola in to do the overtime work, considered in the setting and context in which it was made, constituted a threat of a work stoppage. In accepting Foreman Wilcox's version of the conversation, I have been influenced by the following factors: (a,) The demeanor of the witnesses is a substantial factor for my credibility resolution. A careful scrutiny of the demeanor of the witnesses while testifying under oath caused me to be more favorably impressed with Wilcox as a forthright, reliable and honest witness. (b) Wilcox appears to be the only unbiased and disinterested witness. Indeed his testimony may have rendered his employer liable for a violation of the Act if charges had also been filed against the Company. Yet, he testified without any reluctance in a clear, precise, direct, consistent, and unequivocal manner. (c) Saras and Gossard testified that Saras asked Wilcox who was going to perform the overtime. However, Saras' testimony that prior to that conversation Avolio had already informed him that "possibly Mrs. Bernola" would be coming in, tends to corroborate Wilcox's version that Saras stated that he was aware of the fact that Wilcox had asked Bernola to come down to do the work. (d) Neither Saras nor Gossard testified that Wilcox had stated that he had also asked Mrs. Broadie and that she too had refused to perform the work. Yet neither Gossard nor 2 Although Kredel had informed Saras the preceding day that the best recollection was that Avoho "did it all." overtime work would be taken care of by Avoho and Broadie, Wilcox's 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saras testified that Gossard also mentioned Broadie as one of the service center girls who had performed that work in the past, although she admittedly had done so and historically had far less overtime than those allegedly mentioned by Gossard. Thus, the failure to include Broadie's name under these circumstances tends to corroborate Wilcox's version that he stated he had asked both Avolio and Broadie and both had refused. (e) Saras at first testified that he was the one who mentioned specific names of service center girls with far less overtime who should be considered. However, when asked by the Trial Examiner what names he had mentioned, Saras changed his testimony and stated, "I personally did not mention any names" but that Miss Gossard did. (f) Saras admitted that Wilcox asked him, "are you doing this because of Mrs. Bernola?" This admission, coupled with fact that the foremen suddenly yielded and departed from their long and well-established method of assigning overtime, as they did when they revoked Bernola's overtime assignment, tends to corroborate Wilcox's version that Saras threatened Wilcox with a work stoppage if he brought Mrs. Bernola in to perform the overtime work in question. C. Contentions and Applicable Principles Respondent's counsel contends in his brief that as early as 1950 the FTWP and the Company had "agreed to the principle of overtime in a basic group of employees under a particular foreman, with the understanding that local conditions would vary"; that under this agreement, "overtime is to be equally distributed within a foreman's group"; that to facilitate the policy of overtime equalization in foremen groups the Company agreed to make overtime lists available where requested and to offer overtime "to the lowest qualified person on the list"; and that the representative's manual of the FTWP "instructs its local officers and representatives as to contract interpretations negotiated with management." He further contends that, in accordance with the said agreements between the Company and the FTWP, all the employees in the Rochester service center under the ultimate supervision of Foreman Kiedel constitute the foreman's group for the distribution of overtime; that, as Bernola was not in that group because she was not employed in the service center, Saras correctly insisted that the overtime be offered to other qualified employees in the service center group before Bernola was called; that General Field Clerks Hoodnick and Popik were service center employees who were qualified to perform control foreman clerk's work and should have been offered the overtime assignment; that Saras' contention to Foreman Wilcox was based on Respondent Union's interpretation and understanding of the overtime agree- ments between the Company and the FTWP; and that, even if such interpretation and understanding were erroneous, it was at the very least a "colorable claim" presented in good faith. The General Counsel contends in his brief that Respondent's defense is not supported by the record and is 3 Sec. 8(b)(2) of the Act, to the extent here relevant, makes it an unfair labor practice for a union or its agents "to cause or attempt to cause an employer to discriminate against, an employee in violation of subsection pretextuous. Thus, he argues that the record fails to establish any such agreements or requirements upon the Company; that the Company had merely agreed to accept the "principle of equalization of overtime" among employ- ees in a foreman's group, geographic location, or "some other feasible grouping"; that the contents, form, applica- tion, or implementation of any agreement (or agreements) were all "problems" that had to be negotiated at the local union level; and that the record contains no evidence of any agreement on the local level between Respondent and the Company which requires the Company to equalize overtime. He further contends that, in assigning the overtime in question to Bernola , the Company was merely following the established practice at the local level at Rochester of attempting to equalize overtime within the same craft or classification over a yearly period, and that this practice had been consistently followed in the past without any objection by any one in Respondent Union. It is not disputed that in seeking to have Bernola's overtime assignment revoked and to have her replaced on that assignment with other employees from the service center in the manner previously found, Respondent's President Saras did in fact cause the Company to discriminate against Bernola by denying her overtime work. And this is so even if, contrary to my previous finding, Foreman Wilcox had not been threatened with a work stoppage if he brought Bernola in to perform the overtime. However, it is also true that, as Respondent's counsel points out in his brief, not every employee discrimination in which a union causes an employer to engage is proscribed by the Act. For, as Respondent's counsel correctly states, there can be no violation of Section 8(b)(2) of the Act unless what a union causes or attempts to cause an employer to do would, if done by the employer, violate Section 8(a)(3) of the Act .3 In the instant case, this test would be clearly met if, as the General Counsel contends, Saras' conduct was truly motivated by Bernola's nonmembership in Respon- dent Union and by her action in having filed an unfair labor practice charge against Respondent. On the other hand, the Act would not be violated if, as Respondent's counsel contends, Saras' conduct was in fact based on the "interpretation and understanding of the overtime agree- ment between the Company and the Federation of Telephone Workers of Pennsylvania." The foregoing principles and resulting conclusions are not in dispute. The outcome thus revolves on the pivotal question of President Saras' true motivation. D. Discussion and Conclusions 1. As to Respondent's defense There is no evidence or claim that the asserted agreements on overtime have ever been included in any of the collective-bargaining agreements which have been in effect between FTWP and the Company throughout the entire period. Nor is there any evidence of any agreements on the local level at Rochester between the Company and Respondent concerning the equalization of overtime. 8(a)(3)", and Sec. 8(a)(3) makes it an unfair labor practice for an employer to discriminate "to encourage or discourage membership in any labor organization." FEDERATION OF TELEPHONE WORKERS 465 Foreman Kredel, who had been employed at the Rochester service center for about 18 years, and Foreman Wilcox credibly testified, without contradiction, that they had never been informed and had no knowledge of any company agreements with FTWP or with Respondent with respect to the distribution of overtime. These factors raise considerable doubt in my mind as to whether the Company was in fact contractually obligated to assign overtime in the manner claimed by Respondent's counsel. However, as counsel correctly points out, it is not necessary for me to determine the validity and content of the alleged agree- ments relied on by Respondent. For, as previously stated, a sufficiently adequate defense will be made out by a showing that Saras' conduct was in fact motivated by what he in good faith believed to be Respondent's interpretation and understanding of the alleged overtime agreements between Respondent and FTWP. For the reasons hereinafter indicated, I am convinced and find that Respondent's asserted defense in this respect was not the true motivating reason for Saras' conduct but has been advanced as a pretext or afterthought to cloak the true reason. (a) The procedure which was followed in making the overtime assignment to Bernola was the same one which in the past had been consistently used at the Rochester service center without any complaint or objection from anyone in Respondent Union. Thus, Foremen Kredel and Wilcox credibly testified that it was the Company's practice at the local level at Rochester to attempt to equalize overtime within the same craft or classification over a yearly period; that such attempts were not always successful; that field clerks and general field clerks were treated as two separate crafts or classifications for this purpose; that experience was a major factor considered in assigning overtime and was the reason why overtime could not always be equalized between two people in the same craft; that Bernola was one of the most capable, experienced and qualified employees to perform the control foreman clerk's job; and that the practice of assigning overtime in this job only to Field Clerks Avolio, Broadie, and Bernola, in that order, had been consistently followed in the past without any objection from anyone in Respondent Union. There is no evidence that either Saras or anyone else from Respondent Union had ever previously objected to the manner in which overtime was assigned in the service center.4 (b) It is most significant that Saras admittedly was aware of the fact that Bernola actually worked a great number of overtime hours in the service center on the control foreman clerk's job during the period in 1970 prior to October 13 and that he admittedly made no complaint that this work should first have been offered on an overtime basis to other allegedly eligible service center employees such as-General Field Clerks Hoodnick and Popik. Nor admittedly did anyone else from Respondent voice any complaints in this respect. Counsel for Respondent contends that this occurred only when Avolio was not working either because she was on vacation or was ill, and Saras testified that that was his understanding. I fail to see the significance of this point. For according to Respondent's interpretation of the alleged agreements with the Company on the equalization of overtime, that overtime should first have been offered to eligible service center employees such as Hoodnick and Popik before being awarded to an employee outside the service center like Bernola. In any event, the Company's records show that there were occasions in February, May, and August 1970 when such overtime was awarded to Bernola even when Avolio was working (G. C. Exhs. 5(b), 12, and 3).5 (c) In objecting to the October 27 overtime assignment to Bernola, it is not disputed that Saras at no time mentioned to Foreman Wilcox or Kredel anything to the effect that his objection was based on their failure to follow what he believed to be Respondent's interpretation and understand- ing of the alleged overtime agreement between the Company and FTWP. He at no time mentioned any agreements to them. Indeed, he never testified that he was aware of Respondent's interpretation or understanding of any such agreements or even of their existences 2. As to Saras' true motivation 7 As previously noted, Nancy Bernola became a member of Respondent Union in or about 1959. While on the picket line during the course of an economic strike by Respondent against the Company in the spring of 1968, Bernola asked Douglas, who was one of Respondent's stewards, and also Respondent's President Saras, several questions about the women's working conditions and the benefits they were then receiving under the contract and also expressed dissatisfaction with "some of the things that were going on." She failed to carry out some of her assigned picket duties during that strike and in June 1968 was notified by the FTWP that intraunion charges had been preferred against her for that reason. She failed to appear at a hearing on these charges held before a union trial court on November 14, 1968, and was notified by letters, dated November 1968 and January 1969, that the said trial court had found her in violation of FTWP's constitution and fined her $45. Bernola refused to pay the fine but continued 4 At the time of the instant hearing Saras had been employed at the Rochester service center about 5 years. His testimony concerning his "knowledge" of how overtime was assigned in the service center is inconsistent and confusing. Thus, he first testified that "overtime is on an equalization basis. At times, when feasible, low people will be asked in all groups" (emphasis supplied). When asked by Respondent's counsel "among whom" there was "equalization," he testified, "among the different crafts." This conceivably could be construed as corroborative of the testimony of Foremen Wilcox and Kredel. He then added, "In other words, everyone in the service center . . . one group." After further prodding by Respondent's counsel, Saras testified that there were two groups in the service center for purposes of overtime, that desk men were placed in one group and that field clerks and general field clerks were combined together in the other group Under all the circumstances, I do not credit Saras' testimony to the extent that it conflicts with that of Kredel and Wilcox. 5 I do not credit Saras' testimony that he was not aware of such occasions. Bernola's overtime work on the control foreman clerk 's job was performed for the most at Avoho's desk in the service center and in the presence of Saras and Union Steward Douglas. 6 Contrary to the assertion by Respondent's counsel in his brief, the fact that under threat of a walkout the foreman yielded to Saras' request that the overtime assignment not be awarded to Bernola can under no circumstances be construed as their agreement with his position. 7 Events occunng prior to August 4, 1970, which is more than 6 months before the filing of the 8(b)(2) charge in the instant case, have been considered by me for the light they may shed to illuminate and explain Saras' motivation and conduct in the events which occurred thereafter. N L R.B. v. Bryan Manufacturing Co, 362 U.S. 411; Keller Aluminum Chairs Southern, Inc., et al, 173 NLRB 947, 950-951. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to pay her dues until sometime in November or December 1969, when she informed Respondent's then Vice President Gilbert Steele that she would "drop out" of the Union (FTWP) rather than pay the fine because she felt the fine was "unfair."8 Shortly thereafter Saras stopped her on the stairway while she was on her way to lunch and asked her if it was true that she "dropped out of the Union." Upon receiving an affirmative reply, Saras told her that she would be "sorry."9 Thereafter in 1969, and again in January 1970, Saras posted a notice on the union bulletin board at the Company's Rochester, Pennsylvania, facilities which read: 1970 INFORMATION BULLETIN NON-UNION MEMBERS -FREE RIDERS- NANCY BERNOLA When Bernola continued to refuse to pay the $45 fine; the Respondent, acting through President Saras, instituted a civil suit against her before a justice of the peace to collect the fine and a hearing on this action was held on October 13, 1970. At this hearing Bernola stated that she did not pay the fine because she felt she had been unjustly fined in view of the fact that other employee members who did not picket were not fined. In his statement before the justice of the peace, Saras said that Bernola had asked questions and expressed dissatisfaction about the benefits that women had been receiving under the current contract, that at tunes she had spoken out against the Union on some matters, that she was a "dissident," and that she "felt this was the reason why they were fining me 'specifically" for not having picketed.1o On October 13, 1970, immediately after the conclusion of 8 The findings in this paragraph are based on Respondent's exhibits and on Bernola's credited testimony which is undemed. Although the FTWP mailed a certified letter to Bernola on March 7, 1969, stating that she was automatically expelled for not paying her fine, the record is undisputed that Bernola was unaware of the content of this letter which was returned by the post office before she appeared to claim it. There is no evidence of any further attempt to notify her of any decision to expel her despite the fact that she thereafter continued to pay dues until November as she credibly testified without any contradiction 9 The findings as to this conversation with Saras are based on Bernola's credited testimony Saras denied having made this statement or having engaged in a conversation on this subject. Respondent contends that Bernola should not be credited because other aspects of her testimony disclose inconsistencies in certain minor respects . However, as I have previously found, other aspects of Saras' testimony also contain inconsistencies and confusion. I have already found that Saras was a witness unworthy of belief. Unlike Saras, Bernola impressed me as a sincere and honest witness who testified to the true facts as best she could recall them. I do not credit Saras' denials 10 The findings concerning the statements made by Saras at that hearing are based on a composite of the mutually consistent and credited testimony of Nancy Bernola and her husband who has also attended the hearing. Saras denied using the word "dissident" or stating that she was fined because she spoke against the Union He testified that he gave as the reason for the collection of the fine that "we felt that Mrs. Bernola did not stay and do her picket line duties." FTWP Division President Gnglak, who also made a statement before the justice of the peace, corroborated Saras' version. As between these two sets of interested witnesses for their the hearing before the justice of the peace, Bernola's husband drove her to the Board's Regional Office where she filed unfair labor practice charges against Respondent, alleging that Respondent "restrained and coerced employ- ees" of the Company within the meaning of Section 8(b)(1)(A) of the Act and naming Saras as the union representative to contact. On October 15 these documents were delivered to Saras who admitted that he received them, that he knew they involved some kind of charge which Bernola was making against Respondent Union with the Labor Board, and that he sent them on to FTWP's division office.1' The next day the justice of the peace announced his decision, rendering judgment in favor of Respondent.12 Throughout the year 1970 prior to the filing of the October 13 unfair labor practice charges, Bernola on a great number of occasions had worked overtime, totaling a large number of hours, on the control foreman clerk'sjob in accordance with the service center foremen's practice of awarding this overtime to her whenever service center field clerks Avolio and Broadie refused such assignments, as previously found. Although Respondent's President Saras was fully aware during this period that Bernola was performing this work on an overtime basis, neither he nor any other representative of Respondent had ever objected to the service center foremen about these facts or their practice in this respect or to the fact that other service center employees, including Hoodnick and Popik, were not offered this work on an overtime basis, all as previously found. However, on October 27, 1970, the very first time after filing the above-mentioned unfair labor practice charges that she was assigned to work overtime in the control foreman clerk's job in accordance with usual past practice, Saras immediately protested her assignment on the alleged ground that the work should first be offered to other service center employees, all of whom were members of Respondent Union,13 and under a threat of a walkout by the service center employees caused the foreman to revoke respective sides, I have credited the version of Mr. and Mrs. Bernola, set forth in the text, as being the more reliable . I have previously found Saras not to be a credible witness on other matters and have credited Bernola when her testimony conflicted with that of Saras. In this instance, Bernola testified with the detailed specificity which normally does not accompany a fabrication, and neither Saras nor Gnglak denied that Saras had in fact made the remaining statements and accusation which Bernola attributed to him in the text. Moreover, there are additional factors which tend to lend credence to the credited version in the text. Thus, the record clearly establishes, without contradiction, that Bernola truly was a "dissident" union member and that the Union took cognizance of it . Indeed, Griglak's 1968 letter to Bernola, informing her of the fine imposed by the Union trial court, states among other flings that "Based upon testimony introduced at your trial, the jury wanted it noted that you had stated your intention of violating the Constitution even before the strike began and subsequently reflected an uncooperative attitude during that trying period " In addition, Gnglak admitted that the only other person from Respondent Union who was charged for failing to perform assigned picket duty during that strike was not fined but was exonerated at the union hearing at which he appeared. Contrary to the assertion of Respondent's counsel, I do not regard the basis of the decision rendered by the justice of the peace a few days later as being inconsistent with the credited version set forth in the text. 11 These charges were withdrawn sometime in December. 12 Bernola eventually paid the fine about 6 months later. 13 This is the reasonable inference, which I' herein make, from the fact that the 1970 bulletin board notice posted by Saras lists only Bernola as the "non-union members and free riders." FEDERATION OF TELEPHONE WORKERS 467 Bernola's assignment and to deprive her of this overtime work, all as previously found. Upon consideration of all the foregoing in the light of the afterthought and pretextuous nature of Respondent's defense, as previously demonstrated, I am convinced and find that in causing the Company to deprive Bernola of the overtime work in question, Saras was truly motivated by Bernola's nonmembership in Respondent Union and more particularly by her action in having filed the aforestated unfair labor practice charges against Respondent. E. Concluding Findings I find that Saras' conduct caused the Company to discriminate with regard to the employment conditions of Bernola. In view of my above findings as to the true reasons for Saras' conduct in this respect, I further find that said discrimination reasonably tended to encourage member- ship in Respondent Union and to restrain and coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. As Respondent is obviously liable for the conduct of its president, David Saras, I finally find that Respondent thereby violated Section 8(b)(2) and 8(b)(1)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of the employer named in section I, above, have a close, mtimate, 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. CONCLUSIONS OF LAW 1. Respondent Federation of Telephone Workers of Pennsylvania, Local 58, is a labor organization within the meaning of Section 2(5) of the Act. 2. Bell Telephone Company of Pennsylvania is an employer within the meaning of Section 2(2) of the Act. 3. By causing the Company to deny overtime work to Nancy S. Bernola because of her nonmembership in Respondent and more particularly because she filed unfair labor practice charges against Respondent, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(2) and 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I will recommend that it cease and 14 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 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 order, and all objections thereto shall be deemed waived for all purposes. desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I will recommend that Respondent make Nancy S. Bernola whole for loss of wages incurred as a result of Respondent's conduct in causing the Company to deprive her of the overtime work in the service center in October 1970, with interest thereon at the rate of 6 percent per annum. I will further recommend that within 5 days from the date of this Decision and Order, Respondent inform Nancy S. Bernola and the Company, in writing, that it has no objection to Bernola performing overtime work in the control foreman clerk's job, or in any other job, because of her nonmembership in Respondent Union and/or because she filed unfair labor practice charges against Respondent. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:14 ORDER Respondent; Federation of Telephone Workers of Pennsylvania, Local 58, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Bell Telephone Company of Pennsylvania to deny to employees any overtime work in the control foreman clerk's job, or in any other job, or to discriminate in any other manner with respect to employees' terms and conditions of employment, because of their nonmembership in Respondent and/or because they filed unfair labor practice charges against, Respondent. (b) In any other manner restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Nancy S. Bernola whole for loss of wages incurred as a result of Respondent's conduct in causing the Company to deprive her of overtime work in October 1970, plus 6-percent interest. (b) Notify Nancy S. Bernola and the said Company, in writing, within 5 days from the date of this Decision and Order, that it has no objection to Bernola performing overtime work in the control foreman clerk's job, or in any other job, because of her nonmembership in Respondent Union and/or because she filed unfair labor practice charges against Respondent. (c) Post in conspicuous places in Respondent's business offices, meeting halls, and all places where notices to members are customarily posted, including the Company's bulletin boards if Respondent has access to them, copies of the attached notice marked "Appendix." 15 Copies of said notice, on forms, provided by the Regional Director for Region 6, shall, after being duly signed by Respondent's authorized representative, be posted by it immediately 15 In,the event 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." 468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Sign and mail to the Regional Director for Region 6, sufficient copies of said notice, to be furnished by him for posting by the Company, if it is willing, at places where it customarily posts notices to its employees. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of receipt of this Decision what steps have been taken to comply herewith.16 16 In the event that this Recommended Order is adopted by the Board after exceptions have been filed, notify said Regional Director, in wasting, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Bell Telephone Company of Pennsylvania to deny to employees any overtime work in the control foreman clerk's job, or in any other job, or to discriminate in any other manner with respect to employees' terms and conditions of employment, because they are not members of our Union and/or because they have filed unfair labor practice charges against our Union. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. WE wiLL pay Nancy S. Bernola the wages she lost, with 6-percent interest, as a result of our having caused the Company to deprive her of overtime work in October 1970. Dated By FEDERATION OF TELEPHONE WORKERS OF PENNSYLVANIA, LOCAL 58 (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, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn- sylvania 15222, Telephone 412-644-2977.