Local 6222, Communications Workers

732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communications Workers of America, AFL-CIO, Local 6222 (Southwestern Bell Telephone Compa- ny) and Ben Bateman, Joseph A Thompson, and Eddie Jordan Cases 23-CB-1212, 23-CB-1212-2, and 23-CB-1212-3 December 4, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 28, 1972, Administrative Law Judge' Melvin J Welles issued the attached Decision in this proceeding Thereafter, the General Counsel filed exceptions and a supporting brief and Respondent filed a brief in support of the Administrative Law Judge's Decision 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety 1 The title of Trial Examiner was changed to Administrative Law Judge effective August 19, 1972 TRIAL EXAMINER'S DECISION STATEMENT Op THE CASE MELVIN J WELLES, Trial Examiner This case was heard at Houston, Texas, on January 31, 1972, based on charges filed August 20, 25, and 31, 1971, and a complaint issued December 16, 1971 The complaint alleges that Respon- dent violated Section 8(b)(1)(A) of the Act Respondent filed an answer denying that it violated the Act Counsel for the General Counsel and for the Respondent filed briefs Upon the entire record in the case, I make the following FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Southwestern Bell Telephone Company, herein called the Company, is a Missouri corporation engaged in the business of transmitting and receiving telephone messages in and among several States in the southwestern portion of the United States, including the State of Texas, where it maintains a Houston area office in Houston, Texas During the past 12 months it has received revenues in excess of $ 100,000 for services performed of the nature described above I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent, Communications Workers of America, AFL-CIO, Local 6222, herein called the Union or Respondent, is a labor organization within the meaning of Section 2(5) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A The Agreed Facts and the Issue The facts in this case are not in dispute, as Respondent Union admitted the factual allegations of the complaint and the General Counsel and the Union stipulated to certain other facts i On July 14, 15, and 16, Edwin W Pawlak, an agent of Respondent,2 directed Ben Bateman, Joseph A Thomp- son, and Eddie Jordan, all employees of the Company, to wear upon their person, while working, a union authorized emblem bearing the legend "Ma Bell is a cheap mother " These three members viewed the legend as "morally repugnant and personally offensive," so notified Pawlak, and refused his directive to wear the emblem containing that language On August 8, 1971, Pawlak filed charges against the three employees with the Union's secretary- treasurer, and on August 13, 1971, the three members were notified by the Union that internal union charges had been filed against them because they refused to wear the union authorized emblem The parties further stipulated that the slogan itself was disseminated nationally by news media, particularly television broadcasts, newspaper articles, and radio re- ports It was further stipulated that other members of the Union, union officers, and a cross section of the public generally do not individually or personally find the slogan to be offensive By the institution of the charges by Pawlak and the notification to the three members of the filing of the charges by the Union's secretary-treasurer, Respondent Union is alleged to have violated Section 8(b)(1) of the Act The General Counsel contends that union members have a protected right, even as against internal union discipline, to refuse to follow a policy which they view (reasonably) as "morally repugnant" and "personally offensive " Respon- dent Union, of course, claims that internal union discipline 1 Neither the admission nor the stipulations carry with them any concession as to relevance or as to the ultimate question with respect to whether Respondent violated Sec 8(b)(1)(A) of the Act 2 He is district steward west central district, West Houston Division of Respondent Union 200 NLRB No 109 LOCAL 6222, COMMUNICATIONS WORKERS 733 is, in the circumstances of this case, outside the scope of Section 8(b)(1)(A), that in no event can the personal views of individual union members subject the Union to a violation that would not be a violation without such personal views B Discussion and Conclusions It goes without saying, of course , that union members (or nonmembers) have a right to refrain from engaging in union activities , as Section 7 of the Act makes clear The "right" includes refusing to follow a union policy of wearing particular emblems just as much as it applies to refusing to honor a union's picket line , refusing to strike, etc We start then with the conceded, as it must be, right of the Charging Parties in this case to refuse Pawlak's directive to wear the emblem Establishing the right under Section 7, however, only begins the inquiry, for as the Supreme Court held in N L R B v Allis Chalmers Mfg Co, 388 U S 175, in normal circumstances, internal union disciplinary action is not coercion within the meaning of Section 8(b)(1)(A) even though taken against a member for exercising a Section 7 right The Supreme Court has also held, however, agreeing with the Board, that the "overrid- ing public interest" in permitting free access to the Board made internal union disciplinary action penalizing a member for filing charges with the Board a violation of Section 8(b)(1)(A) notwithstanding the general exemption of such discipline from 8(b)(1)(A)'s proscriptions N L R B v Industrial Union of Marine and Shipbuilding Workers of America, 391 U S 418 The Board has subsequently held that internal union discipline against a member who refused to join a union-sponsored strike was violative of Section 8(b)(1)(A) when the agreement between the union and the company contained a no-strike clause Glaziers' Local 1162, a/w The Brotherhood of Painters, Decorators, Paperhangers, Glaziers and Glassworkers of America, AFL-CIO (Tusco Glass, Inc), 177 NLRB 393, 397-399, National Grinding Wheel Company, Inc, 176 NLRB No 89 The question in the instant case then is whether there is an overriding public policy protecting union members who view participation in particular union-sponsored activity as "morally repugnant and personally offensive " against internal union discipline Stated otherwise, whether there is a violation in this case seems to turn on whether the situation is analogous to that in Allis Chalmers or to that in National Grinding Wheel and Glaziers The Supreme Court in Scofield explicated the test to be applied in determining whether or not Section 8(b)(1)(A) applies to internal union discipline in varying situations Referring to its own decisions in Allis Chalmers and Marine 3 The last portion of the quote presents no problem here Although the record is silent on the matter I take official notice of the fact that Texas is a right to work state and hence membership in the Union was completely voluntary rather than a condition of employment 4 When asked whether he would still be claiming that there was a violation of Sec 8(b)(1)(A) had the slogan read for example, Bell does not pay its employees enough money the General Counsel responded No I would not In other words, it s my position that these individuals reasonably viewed this slogan as being personally offensive and morally repugnant and I in hanging my case on that I assume that a member s viewing this hypothetical slogan as morally repugnant and personally offensive would not alter the General Counsel s position, for that view would probably not Shipbuilders, the Court stated (394 U S at 430) "Under this dual approach, Section 8(b)(1) leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest, impairs no policy Congress has imbedded in the labor laws, and is reasonably enforced against union members who are free to leave the union and escape the rule "3 The Court went on to conclude in Scofield (id at 436) "The union rule here left the collective-bargaining process unimpaired, breached no collective contract, required no pay for unperformed services, induced no discrimination by the employer against any class of employees, and represents no dereliction by the union of its duty to fair representation In light of this, and the acceptable manner in which the rule was enforced, vindicating a legitimate union interest, it is impossible to say that it contravened any policy of the Act " The General Counsel in this case specifically confines his claim of a violation to the Charging Parties' "view" that wearing the emblem in question was "morally repugnant and personally offensive " The General Counsel indeed specifically disavowed any contention that the Union would have violated Section 8(b)(1)(A) had the refusal not been based on the Charging Parties' view to that effect 4 I think it would be helpful to discuss the legal issue here, initially at least, without regard to the General Counsel's theory of the case It could be argued, for example, that a union violates Section 8(b)(1)(A) by disciplining members for refusing to engage in conduct which if engaged in would itself not be protected against employer discipline The National Grinding Wheel and Glaziers cases, supra, were both cases in which, had the employees involved engaged in the strike called by their union, they would have been unprotected, their employer could have dis- charged or otherwise disciplined them for striking in violation of a no-strike clause Significantly, however, in neither of those cases did the Board predicate its finding of an 8(b)(1)(A) violation on the unprotected nature of the strike that the members were requested to join, but rather on the "public policy in favor of enforcement of collective bargaining agreements overrid[ing] and outweigh[ing] the union's right to discipline its members " I also read Justice Brennan's opinion for the Supreme Court in Scofield as supporting the proposition that internal union discipline is not violative of Section 8(b)(1)(A) merely because it is imposed on a member for refusing to engage in an unprotected activity Thus, in discussing the situation in Scofield and that in the earlier Allis Chalmers case, the Court pointed out that "there [in Allis Chalmers] the member could be replaced for his refusal to report to work during the strike, here [in Scofield] he need simply limit his production and suffer whatever consequences that conduct be regarded as reasonable The complaint would so indicate as it states that the Charging Parties reasonably regarded the slogan in the way that they did In the light of the complaint s recital of the fact that the Charging Parties notified the union agent Pawlak of their objection and the basis therefor I assume that such notification is also essential to the General Counsels position in this case Perhaps this latter element would not be viewed as an essential element in the case where the slogan involved was manifestly obscene or repugnant to almost everyone (thresholds of sensitivity vary so widely that it would be impossible to think of a slogan that would be offensive to everyone) so that the reason would be apparent without notification or a contemporaneous statement of it That is clearly not the situation here as will become obvious in my discussion below 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may entail " [Emphasis supplied ] Plainly these "conse- quences" included whatever discipline the Employer might visit on the employee for refusing to meet his production quota For these reasons, I could not conclude that a violation would be made out if it were shown that the Employer could discharge or discipline an employee for complying with the Union's request 5 In so "concluding," I am not rejecting the contention of the General Counsel, for, as indicated, that contention is not advanced Neither the stipulated facts nor the slogan on its face seems to be "morally repugnant" or "personally offensive" to the point that almost anyone would so view it Granted that what to me may be innocuous and inoffensive may be to some others, or even most others, quite the contrary, I am in this case, at least, reinforced in my view by the stipulation that other members of the Union, union officers, and a cross section of the community would not find the slogan to be offensive, and the further stipulation that the slogan was disseminated nationally by the various news media Without belaboring the point, I am willing to assume that the Charging Parties' belief was at least not so unreasonable as to be frivolous, which perhaps transmutes into "reasonable," and to resolve this case on that assumption That assumption is the framework in which the General Counsel pregents this case, and from which he contends that a violation of Section 8(b)(1)(A) should be found I am constrained to disagree Clearly, none of the decided cases finding internal union discipline violative of Section 8(b)(1)(A) compels a similar conclusion here, for they involved access to the Board, or a breach of the union's own collective-bargaining agreement, a far cry, in my opinion, from conduct that is viewed as "morally repugnant and personally offensive" Individual views, even though "reasonable," hardly rise to the level of an "overriding public policy" Were that not so, Allis Chalmers and Scofield would have to be read as limited to situations where the individuals fined did not have strong moral views about striking, or not producing to their fullest capacity, both of which are views probably shared by enough people (although perhaps a minority) so as to qualify as "reasonable " We are not dealing here with questions of "free speech," or "civil liberties", we are dealing with the narrow question of whether internal union discipline violates Section 8(b)(1)(A) despite the normal exemption from that section of such discipline I cannot find, consonant with the principles of the Board and Supreme Court cases, that a violation has been, or could be, established predicated on reasonable views that the conduct in question is morally repugnant and personally offensive Even treating the case as one in which the slogan was manifestly "morally repugnant and personally offensive" would not change my result Voluntary members can leave the Union, oust a leadership that directs such conduct, and, indeed, since a "manifestly obnoxious" slogan would be so characterized only if most people thought of it that way, and most people includes union members, those remedies would inevitably flow from the universal charac- terization Thus, the remedy in that situation seems to me to lie not with the Labor Board, but within the Union itself For all of these reasons, I shall recommend that the complaint herein be dismissed CONCLUSION OF LAW The evidence does not establish that Respondent engaged in the unfair labor practices alleged in the complaint Upon the foregoing findings of fact, conclusion of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER The complaint is dismissed in its entirety 5 Consequently I do not decide whether wearing of the slogan here or U S 464) demonstrates that there are lines to be drawn and that wearing of any slogan would be protected concerted activity, although the teaching of certain types of slogans would not be protected against employer the Jefferson Standard case (N L R B v Local Union No 1229 IBEW, 346 discipline