Loc. 1197, Communications Workers

LOC. 1197, COMMUNICATIONS WORKERS Local 1197, Communications Workers of America, AFL-CIO (Western Electric Company, Inc.) and Paul Sayko, Jr. Case 3-CB-1902 March 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On November 2, 1972, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 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 brief 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 Respondent, Local 1197, Commu- nications Workers of America, AFL-CIO, Syracuse, New York, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This case was tried" before me at Syracuse, New York, on September 12, 1972. The charge was filed by Paul Sayko, Jr., an individual, on June 30, 1972, and the complaint issued August 8. The primary issue is whether Respon- dent's disciplining of certain of its members, employees of Western Electric Company (the Employer), for crossing a picket line of a sister local violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq. ), herein called the Act. Upon the entire record,' and after due consideration of the briefs filed in behalf of the General Counsel and the Respondent, I make the following: On October 16, 1 issued an Order to Show Cause (which is hereby received in the record as ALJ Exh. I) why the transcript of the hearing FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER 229 The complaint alleges, the answer admits, and I find that the Employer is a New York corporation, maintaining manufacturing plants and other facilities in various States, including a service facility in Syracuse, New York, where it is engaged in the repair, distribution and installation of telephone communication equipment; that during the past year the Employer's purchases and deliveries directly from other States exceeded the value of $1 million; and that the Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 11. THE LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Facts The basic facts are not in dispute. Following a brief work stoppage over renewal of the national agreement between the Employer and Respondent's parent Internation (CWA), the employees represented by Respondent (some 500) returned to work when a settlement was reached in mid-July 1971. A few days later, however, on July 23, said employees again failed to report for work and remained out until February 17, 1972, observing a picket line established by Local 1123 of the same International against New York Telephone Company which occupies space at the same location leased to it by the Employer. The Employer's contract with CWA, admittedly binding on Respondent throughout the period of the strike, contains the following no-strike clause: ARTICLE 40 • MAINTENANCE OF WORK OPERATIONS 1. There shall be no lockouts, strikes, work stoppages or slowdowns during the life of this Agreement. No officer or agent of the Union or the Company shall authorize, instigate or condone any such activity. No employee shall participate in any such activity. The Company shall have the right to take disciplinary action, other than termination of employment, against any employee participating in a violation of the foregoing. The Company, upon written- notice to the Union, shall have the right to suspend or terminate the provisions of Article 26-Union Security, and Article 27-Payroll Deduction of Union Dues, with respect to any or all Locals in the event of a violation of the should not be corrected in certain respects. No good cause to the contrary having been shown, such corrections are hereby ordered made. 202 NLRB No. 45 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD foregoing by a Union Officer or Representative unless prompt and effective corrective action is taken.2 In the course of this 7-month strike the Employer had several meetings with Respondent's president, Joseph Blair, and informed Blair that it considered observance of Local 1123's picket line to be in violation of the no-strike clause in article 40. Blair took the position that the contract did not preclude Respondent's cessation of work because it was not the striking local and the CWA constitution forbade members of one local to cross the picket line of another local.3 Blair testified without contradiction that on three occasions (1957, 1968, and 1969) Respondent-repre- sented employees of the Employer honored the picket lines of varying duration of sister locals with no reprisal by the Employer, while a 1-day stoppage conducted by Respon- dent itself in 1969 resulted in a 2-month suspension of the dues checkoff pursuant to article 40 of the contract. Blair further testified without contradiction that the Employer took no reprisal action against those employees who observed the instant picket line maintained by Local 1123. At some time during this strike a number of employees who belonged to Respondent crossed the picket line to return to work. Internal union disciplinary proceedings were instituted therefore against the four employees named in the instant charge, Paul Sayko, Jr., Walter Penwarden, Joseph F. Bach, and Donald D. Michaels. They received notice thereof by letter dated November 26, 1971. On March 15, 1972, the cases were noticed for trial March 27. The employees did not appear, and on June 21 the cases were rescheduled for June 26, on which date the individu- als were tried in absentia.4 They were convicted, fined various amounts,5 and expelled from the Union .6 Subsequent to the institution of the intraunion proceed- ings but prior to the trials and convictions, Respondent received certain communications from the International concerning such proceedings. As early as December 10, 1971, Vice President Morton Bahr dispatched a memoran- dum to the presidents of all sales and installation locals of CWA noting the Employer's circulation of "an NLRB decision which stated that a local union respecting the lines of a sister local could not impose fines on a member who went to work if the contract covering that worker contained a no-strike clause," and quoting the Internation- al's general counsel, Koons, as follows: Since Sales and Installation contracts contain no-strike clauses, Locals of these bargaining units would fall within the prohibition of the above ruling. The fining or threatening to fine members who cross picket lines to work would constitute unfair labor practices. Respondent nevertheless proceeded with its cases, as set forth above, and on March 22, 1972, National Director F. J. Novotny wrote to Respondent President Blair and to the 2 The identical clause appeared in all prior contracts between the parties at least since 1952 3 The constitutional provision so relied on specifies the following conduct as one of numerous offenses listed in art XIX, sec 1 , for which members may be fined, suspended or expelled, °(e) Working without proper Union authorization, during the period of a properly approved strike in or for an establishment which is being struck by the Union or local " 4 These were the only members actually tried by Respondent, although 58 other members of the unit have been charged with similar violations of art XIX of the CWA constitution 5 The amounts ranged from $2,025 to $2,502, the formula being the presidents of three other locals, informing them that in accordance with his previous letter of March 77 this matter had been referred to International President Beirne and General Counsel Koons, and that he had since been advised by Koons that any fines or threats on the premises would violate the Act. And, reminding the addressees of Vice President Bahr's prior memorandum, Novotny concluded: Therefore, in view of the above advice received from Legal Counsel Koons, I am directing you to cease and/ or retract any action connected with the fining or suspensions of members in the Sales Unit, who crossed Picket Lines during the New York Telephone Strike. As noted above, Respondent ignored this explicit directive. B. Analysis The above facts clearly establish Respondent's imposi- tion of severe disciplinary measures against certain of its members to compel their adherence to its policy of honoring Local 1123's picket line. In light of the broad strike prohibition in article 40 of the contract with the Employer, such conduct on its face runs afoul of the Board's National Grinding Wheel doctrine.8 Respondent argues, however, first, that National Grinding is bad law (though it disclaims any attempt to persuade me, as distinguished from the Board, to upset Board precedent); and, second, that the instant case is distinguishable from National Grinding despite the breadth of the prohibitory language (which it concedes to be no less proscriptive than that in National Grinding) because the same section of article 40 goes on to provide for action by the Employer in the event of a violation, and the Employer's inaction both during the instant strike and historically in similar situations in contrast to its action in response to Respon- dent's own strike in 1969 shows that the prohibition was not intended to apply to work stoppages resulting from honoring a sister local's picket line. The argument lacks merit. I do not find the Employer's conduct to amount to anything more than forbearance in situations where its underlying quarrel was with another union. The weakness in Respondent's position is perhaps best demonstrated by its reliance on the the Employer's steadfast position, enunciated repeatedly, that Employer's inaction during the instant strike. In the face of this strike was a breach of article 40, it defies reason to attribute its failure to apply the sanctions provided by that article to an acquiescence in the opposite position. Significantly, article 35 of the contract provides: hourly rate from the individual's return to work until the termination of the strike, less $100 per week , an amount assumed as New York State unemployment benefits at $75 per week plus $25 strike benefits payable from the CWA defense fund 6 Respondent, noting that the employees did not invoke the appellate procedures provided by the CWA constitution, makes no argument based thereon r Not in the record 8 Local 12419, Dist 50, United Mine Workers (National Grinding Wheel Co), 176 NLRB 628 LOC. 1197, COMMUNICATIONS WORKERS 231 INTERPRETATIONS Interpretations of the provisions of this agreement mutually agreed upon by the Company and the International shall be reduced to writing and signed by the authorized representatives of both parties. As already noted, not only has the Employer never agreed either in writing or orally to any interpretation of article 40 at odds with its plain language,9 but the International (the contracting party as well as the recognized exclusive bargaining representative) shares the Employer's view as to the meaning of the contract and indeed so advised Respondent repeatedly.10 I accordingly find that Respondent violated Section 8(b)(1)(A) of the Act by levying fines against, and expelling from membership, the four employees named in the charge and by filing intraunion charges against 58 other employ- ee-members,11 in order to force adherence to Respondent's policy of honoring a sister local's picket line contrary to the clear language of the contract. Local 12419, United Mine Workers (National Grinding Wheel Co.), supra. A final point "suggest[ed]" but not argued by Respon- dent deserves mention, i.e., the applicability of Collyer Insulated Wire, 192 NLRB No. 150. The grievance-arbitra- tion procedures provided by the contract read, in pertinent part: ARTICLE 6 GRIEVANCE PROCEDURE 1. To provide for the expeditious and mutually satisfactory settlement of questions arising with respect to wages, hours of work and other conditions of employment, the procedures hereinafter set forth shall be followed: 2. The International delegates to each of its Locals at the Company's Service Centers the right to discuss all grievances initiated by the employees who are within the respective jurisdiction of the Locals. 3. Any employee or group of employees having a grievance may, within sixty (60) days following the date of the alleged unjust action, have a Local Representa- tive take up the matter with Local Management during normal working hours. Ordinarily, Local Representa- tives shall take up grievances first with the employee's immediate supervisor; however, exceptional cases may be referred directly to higher levels of Local Manage- ment. In these exceptional cases at least two (2) Local Representatives shall be present. 9 The contract language must be deemed to have been entered into with knowledge of the National Grinding decision which had come down over 2 years earlier 10 Respondent renews in its brief the objection it raised at the hearing to the admission of the international's messages transmitting such advice It argues that the statements contained in that exhibit are only what they represent to be, interpretations of the Act in respect to the commission of an unfair labor practice . . [Tlhe state of Respondent's officers (sic) collective minds-what they were advised was or was not legal-hardly disposes of the question presented by this case In other words, the Administra- tive Law Judge, and subsequently the Board, will determine whether there was a violation based upon this record, and not based upon another's opinion 3.1 It is recognized that the Local Representatives may process a grievance on behalf of an employee or group of employees even though such employees do not instigate the grievance. 3.2 Local Management will not, during the course of the grievance procedure, discuss the subject of a grievance with the employee or employees involved unless a Local Representative is present. This prohi - bition shall not apply in the case of grievances initiated in accordance with Paragraph 12 of this Article unless and until the employee or employees involved notify Local Management that the grievance has been transferred to the Local for processing. 4. When grievances are not settled satisfactorily with the immediate supervisor or higher levels of Local Management, the grievance may be referred to the Local Bargaining Committee. 6. If, after the grievance has been presented to the Local Bargaining Committee, it is not settled to the satisfaction of the Local, the Local may transfer jurisdiction over the grievance to the Master Bargain- ing Committee. A letter to that effect shall be written by the Local to the Bargaining Agent of Local Management. The Local and Local Management shall thereupon prepare, sign and exchange separate state- ments containing matters each considers pertinent to the proper consideration of the grievance, including but not necessarily limited to the following: (a) Exact nature of the grievance, and specific adjustment desired by the Local. s s * s s 9. Neither the Company nor the International shall advance any argument or evidence not contained in the statement prepared and signed by the Local and Local Management, as provided for in Paragraphs 6 and 7 of this article. s s * s s 10. The Company shall render its decision in writing within ten (10) days after the Signing Representative has given the Bargaining Agent notice that the International's presentation has been completed. s s * a a 12. Nothing contained in this Agreement shall de- The objection is again denied it misses the point completely The documents are relevant not as opinions of what constitutes an unfair labor practice but as declarations by the contracting party that represented Respondent in the negotiations as to' the meaning of the clause in question it is paradoxical for Respondent to rely on equivocal conduct by the Employer to modify the plain language of the contract while objecting to the unequivocal interpretation by its own contracting party consonant with that language 11 Although not alleged in the complaint, the 58 other cases were stipulated into the record, and the issues are "closely related" if not identical, those charges evidently being held in abeyance pending the outcome of the instant case See Lake County, Indiana, Carpenters (Tonn & Blank, Inc), 182 NLRB 233, In 1, Associated Mills, Inc, 190 NLRB No. 8 (TXD, In 15) 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prive any individual employee or group of employees of the right at any time to present grievances, ,and to have such grievances adjusted without the intervention of a Union Representative, as long as the adjustment is not inconsistent with the terms of this Agreement. In these cases, the Local Representative shall be given the opportunity to be present when final adjustments are made.. . . But even if, arguendo, this procedural obstacle were not deemed insuperable, the case would still not be controlled by Collyer because as we have seen, "the General Counsel's interpretation is ...compelled by the language" of the clause in question (cf. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, etc, 198 NLRB No. 4) which, under article 7, paragraph 2, of the contract, the arbitrator would "have no authority to alter or modify." * ARTICLE 7 ARBITRATION If the International and the Company fail to settle by negotiation any differences arising with respect to the interpretation of this Agreement, or the perform- ance of any obligation hereunder, (a) Provided that such dispute is not excluded from arbitration by other provisions of this Agreement; (b) Provided that such dispute does not involve a case in which the determination of the matter is within the judgment or discretion of the Company; (c) Provided that the grievance procedures as to such dispute have been exhausted; such differences shall be referred, upon written de- mand of either party given not later than sixty (60) days following the date of final answer in the grievance procedure, to an impartial Arbitrator mutually agreeable to both parties. 2. The Arbitrator shall have no authority to alter or modify the provisions of this Agreement. . . . Any decision made in compliance with the foregoing shall be final and the parties agree to abide by such decision. There are at least two reasons why Collyer is inapplicable here. The arbitration machinery established under the foregoing provisions appears to be the culmination of the grievance procedure which in turn is available to individual employees only against the Employer, not against their locals. If the sole obstacle to deferral here were the diversity of interests between Respondent and the employ- ees (cf. Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2), that difficulty might be overcome by the harmony of interests between employees and employer with the consequent likelihood that the Employer would adequately represent them (cf. National Radio Company, 198 NLRB No. 1; International Harvester Co., Indianapolis Works, 138 NLRB 923, 928).12 But the more basic problem here, indicated above, resides in the failure of the contract to contemplate a grievance on behalf of employees against their bargaining representative or its constituents. 12 It is noted, however, that in National Radio, the union, whose interest was found to coincide with that of the employee, was not only the charging party but had already instituted a grievance proceeding on his behalf 13 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, CONCLUSIONS OF LAW 1. Western Electric Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By instituting disciplinary proceedings against Paul Sayko, Jr., Walter Penwarden, Joseph F. Bach, Donald D. Michaels, and 58 other members of Respondent for crossing Local 1123's picket line, and by fining and expelling the aforesaid four named individuals, Respon- dent has violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein, my recommended Order will require Respondent to cease and desist therefrom and to refrain from any like or related infringement upon the Section 7 rights of its members. In order to effectuate the policies of the Act, I shall also recommend rescission of the fines and expulsions and the withdrawal of all pending intraunion charges through the same means of communication employed in the commission of the unfair labor practices found; as well as the usual posting of notices. Upon the foregoing findings of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: 13 ORDER Respondent, Local 1197, Communications Workers of America, AFL-CIO, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Fining, expelling, or instituting disciplinary proceed- ings against any of its members for crossing a sister local's picket line as long as it is bound by the current collective- bargaining agreement between Communications Workers of America, AFL-CIO, and Western Electric Company, Inc., or any other contract containing a provision of like effect to article 40, paragraph 1, thereof. (b) In any like or related manner restraining or coercing its members in the exercise of their rights guaranteed by Section 7 of the Act. conclusions and recommended Order herein shall, as provided in Sec 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 LOC. 1197, COMMUNICATIONS WORKERS 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Rescind all fines imposed and all expulsion orders entered against Paul Sayko, Jr., Walter Penwarden, Joseph F. Bach, and Donald D. Michaels. (b) Withdraw all disciplinary proceedings pending against any member of Respondent for crossing a picket line established by Local 1123, Communications Workers of America, AFL-CIO. (c) Notify all members directly concerned in subpara- graphs (a) and (b) of this subparagraph 2, through the same means of communication employed in instituting and ifnplementing the disciplinary proceedings against them, of the steps taken to comply herewith. (d) Post at its offices located at Syracuse, New York, and at all places where it customarily posts notices to its members, copies of the attached notice marked "Appen- dix." 14 Copies of said notice, on forms provided by the Regional Director for Region 3, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken to'insure that said notices are not altered, defaced or covered by any other material. (e) Notify the Regional Director in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 14 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 " APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fine, expel, or institute disciplinary proceedings against any of our members for crossing a 233 sister local's picket line as long as Local 1197 is bound by the existing collective-bargaining agreement be- tween CWA and Western Electric Company, Inc., or any other contract contaming a provision to the same effect as article 40, paragraph 1, of the existing agreement. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL rescind all fines imposed and all expulsion orders entered against Paul Sayko, Jr., Walter Penwar- den, Joseph F. Bach, and Donald D. Michaels. WE WILL withdraw all disciplinary proceedings pending against any of our members for crossing a picket line established by Local 1123, CWA. WE WILL notify Paul Sayko, Jr., Walter Penwarden, Joseph F. Bach, Donald D. Michaels, and all other members against whom disciplinary proceedings have been instituted because of their crossing Local 1123's picket line, in the same way that we notified them of the institution of those proceedings and of adverse action taken therein, that we are withdrawing all such proceedings and rescinding all such adverse action. Dated By LOCAL 1197, COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 9th Floor, Federal Building, 111 - West Huron Street, Buffalo, New York 14202, Telephone 716-842-3100.