American Telephone & Telegraph Co.

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Telephone & Telegraph Co. and Anne Walden. Case 2-CA-13094 H. occasions, and claimed that Beckett and his superior, June 20, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On March 26, 1974, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed a statement in support of the Administra- tive 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 but only to the extent consistent with the following. On September 17, 1973, the Respondent issued Anne H. Walden, the charging party, a warning of possible "very severe disciplinary action" because of the manner in which she conducted herself on that date while engaged in certain union activity. The complaint alleges in essence that as the warning was given because of Walden's union activities it violated Section 8(a)(1) of the Act. The Administrative Law Judge concluded, however, that Walden was not engaged in a union matter such as contract negotia- tions or grievance settlement but only in a "peripher- al procedural matter totally devoid of substance" and could see no reason for what he considered to be her improper conduct. Accordingly, he found that Respondent had not violated the Act. We agree with the General Counsel that the Administrative Law Judge erred in his consideration of the case. The facts are simple enough. Walden in her capacity as a union agent requested certain informa- tion relevant to a change in the Respondent's organization or operations which would affect the employment situation of a number of employees. On Friday, September 14, 1973, she received from W.R. Beckett, a district operations manager, a slip of paper containing some data, which, however, she consid- ered wholly inadequate in terms of what she had requested. The following Monday morning she went to Beckett's office to complain about the matter. According to the credited testimony, Walden, in an increasingly louder voice, referred to the information sent her as garbage, stated that the type of informa- tion she wanted had been given her on other Nichols, should be able to interpret her requests. Then in response to Beckett's statement that the information supplied was that asked for, she shouted she was not there to play games and finally-and still shouting-she made some comment concerning Beckett's lack of intelligence. At several points Beckett interjected to warn Walden that the meeting would end if she did not improve her tone and manner and with her comment concerning his lack of intelligence Beckett stated the meeting was ended. Walden left. The whole meeting had lasted only 3 to 5 minutes. That afternoon Beckett called Walden to Manager Nichols' office where he first told her he was speaking to her in her capacity as an operator, i.e., as an employee, and then gave her a warning for her earlier "abusive and extremely loud" behavior in his office, which, he stated, would not be tolerated and which if repeated would subject her "to very severe disciplinary action." He added the warning would be noted in her personnel file and, according to his testimony, did place in her file a summary statement of the warning and of her reactions to receiving it. It is clear from the facts outlined above that at the morning meeting with Beckett on September 17 Walden was acting solely in her capacity as a union representative. Indeed, as Beckett was not her supervisor, she had no reason to deal with him except in her capacity as a union agent. It is also clear that at the time she was acting in furtherance of a legitimate union objective-the acquiring of what she deemed relevant job data. In view of the foregoing we find unwarranted the Administrative Law Judge's conclusion that Walden was engaged only in a "peripheral procedural matter totally devoid of substance" with the implication that her activity was somehow not entitled to the full protection of the Act. Neither do we find any substance in Respon- dent's argument to the effect that Walden was not engaged in a "legitimate or relevant request concern- ing clarification" of data previously given her because she did not in so many words specifically ask for such clarification. The Respondent introduced considerable evidence for the purpose, apparently, of showing that Walden had already been given the information she was complaining she had not received. It is nevertheless plain that Walden was in good faith complaining about the insufficiency of the data supplied her, and that she was attempting to secure what she regarded as fuller and more complete data. Despite his somewhat contrary testimony Beckett obviously realized at the meeting that he was faced with a request for clarification or for additional information, and was resisting the claim of inadequa- 211 NLRB No. 115 AMERICAN TELEPHONE & TELEGRAPH CO. cy. His questioning Walden concerning what was wrong with the information supplied and his claim at the time that it met with the request is susceptible of no other reasonable interpretation. We are not here called upon to determine the merits of either party's views into the adequacy or inadequacy of the information in issue. We do, however, find that throughout the morning meeting Walden was acting as a union agent in pursuit of what she regarded as a need for further data. That, of course, was a legitimate union objective and she was thereby engaging in protected concerted activity. The next issue before us then is whether, as the Administrative Law Judge appears to have found, Walden's shouting and her critical comments con- cerning Beckett were separate and apart from her presentation of her complaint concerning the inade- quacy of the information supplied. On the contrary, that conduct was the very means-albeit, we agree, a rude one-by which she presented her complaint and thus was a part of the res gestae of the protected activity. Finally, the question remains as to whether Walden's conduct was so flagrant or so opprobrious as to place it beyond the protection of the Act. We find it was not, for, it really involved only Walden's talking at a shout and making some unkind com- ments concerning Beckett's intelligence.' Obviously Beckett found Walden's behavior unpleasant and uncalled for and his refusing to tolerate it by terminating the meeting only minutes after it began is not being challenged here. However, we have long recognized that the disagreements which arise in the collective-bargaining setting sometimes tend to pro- voke commentary which may be less than mannerly, and that the use of strong language in the course of protected activities supplies no legal justification for disciplining or threatening to discipline an employee acting in a representative capacity, except in the most flagrant or egregious of cases. While, therefore, Walden's conduct here was less than genteel, we find in view of all the foregoing that her conduct was not so opprobrious as to be unprotected and that by threatening her with severe discipline as described above Respondent violated Section 8(a)(1) of the Act.2 THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section I The Respondent claims that Walden also refused to obey repeated orders of Beckett to change her manner. Such refusal would not necessarily require a different result here, but as a matter of fact it did not occur. Beckett did no more than warn Walden he would end the meeting if she did not change her manner. Also, contrary to the Respondent's claim, there is no evidence that Walden's conduct caused any substantial disturbance of its 783 8(a)(1) of the Act, we shall order it to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Also as it appears that the Respondent placed in Walden's personnel file a written version of the unlawful warning of possible severe discipline, we shall order Respondent to expunge from that file and all other records any copy of that unlawful warning or any reference to that warning. In view of all the foregoing, we make the following: CONCLUSIONS OF LAW 1. American Telephone & Telegraph Co. is an employer engaged in commerce in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1150, Communication Workers of Amer- ica, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by threatening Anne H. Walden with disciplinary action because of her manner of engaging in protected concerted activities in her capacity as a representative of the Union. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, American Telephone & Telegraph Co., New York, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with severe discipline because they engage in protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights protected by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Expunge from Anne H. Walden's personnel file and from all other of its records all copies of, or references to, the unlawful warning issued to her on September 17, 1973. (b) Post at its place of business at 32 Avenue of the operations. At most her loud talk distracted 10 persons for a couple of minutes and, as one of them testified , she stopped work momentarily because she wanted to overhear what was being said. 2 See, for example, Houston Shell and Concrete Co., a Division of McDonough Co., 193 NLRB 1123; Crown Central Petroleum Corporation, 177 NLRB 322, enfd. 430 F.2d 724 (C.A. 5). 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Americas, New York, New York, copies of the attached notice marked "Appendix."3 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respon- dent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 2, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event that this 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 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 EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government We hereby notify our employees that: WE WILL NOT threaten our employees who are union agents with severe discipline because they engage in protected concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights protected by Section 7 of the National Labor Relations Act. WE WILL expunge from Anne H. Walden's personnel file and from all other of our records all copies of, or references to, the unlawful warning issued to her on September 17, 1973. AMERICAN TELEPHONE & TELEGRAPH CO. (Employer) Board's Office, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Tele- phone 212-264-0306. DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at New York City on December 13, 1973. The complaint, dated October 30, 1973, based upon charges filed and served September 25 and October 19, 1973, by Anne H. Walden, was issued by the Regional Director for Region 2 (New York, N.Y.), on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board. The complaint alleged that Respondent, American Telephone and Telegraph Company, had engaged in, and was engaging in, unfair labor practices by threatening the Charging Party with disciplinary action because in her capacity as a union representative, she was seeking clarification of certain information furnished the Union by Respondent, thus violating Section 8(axl) of the Act. In its duly filed answer Respondent denied the commis- sion of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all times material herein, Respondent, a corporation duly organized under and existing by virtue of the laws of the State of New York, has maintained an office and place of business at 200 Park Avenue in the city and State of New York and other places of business in the various States of the United States where it is and has been at all times material herein continuously engaged in providing telecommunication services and related services. During the year preceding issuance of the complaint, which is a representative period, Respondent in the course and conduct of its business operations performed services valued in excess of $10,000,000 of which services valued in excess of $50,000 were performed in and for various enterprises located in States other than the State wherein it is located. At all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Dated By (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 compli- ance with its provisions may be directed to the II. THE LABOR ORGANIZATION Local 1150, Communication Workers of America, at all times material has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The issue is a very narrow one: Did Respondent Company violate Section 8(a)(1) by issuing the Charging Party, Anne H. Walden, a disciplinary warning because of AMERICAN TELEPHONE & TELEGRAPH CO. 785 the manner in which she conducted herself while engaged in union business on September 17, 1973. Walden has been employed by Respondent since 1946. During this tenure she has held various positions with the Union and currently was traffic section chairman, member of the union executive board, convention delegate and a member of the long-lines bargaining committee. In the summer of 1973, discussions took place between Respondent and the Union regarding the closing of one of four overseas operating districts and the transfer of some 20 employees from the discontinued district to the others. In this connection Walden asked Respondent for certain data to be used by her in evaluating the proposed change. On Tuesday, September 14, W. R. Beckett, a district operations manager for Respondent, submitted some information in writing to Walden that she had requested earlier that day and which, according to her, was incomplete.' On Monday morning, September 17, Walden attempted to see Beckett about the matter. He was not in his office and she left a message to have him call her. He called but was unable to reach her. Thereupon, without notice and on company time (contrary to the requirements of the collective-bargaining agreement),2 she went to Beckett's office again. According to Beckett's testimony, a few preliminary remarks between them were cordial enough but then "the meeting changed dramatically." In a very loud voice Walden told Beckett that she was there to talk about the "garbage" he had sent her. Beckett asked, "what garbage?" Her tone increasing in volume to a shout, she replied, "that little piece of paper in that big envelope." Beckett was about to ask Walden what was wrong with it, when Walden continued saying that it was the type of informa- tion she had requested several times from his superior Nichols and had requested from him the previous Friday. At this point Beckett cautioned her that "if her tone and manner did not change" the meeting would be terminated. This had no effect on Walden who loudly proclaimed that Nichols and Beckett "should be intelligent enough to interpret her request." Beckett then said he had provided the information she had requested in their Friday meeting and Walden shouted that she was not there to play games. Beckett again cautioned her to change her tone and manner. Even louder, Walden made some remark about Beckett's lack of intelligence. At this point Beckett told her the meeting was over and Walden left his office. Three company witnesses, all supervisors, who were working in rooms near or adjacent to Beckett's office (which was a cubicle partially enclosed by banker's partitions that did not extend from floor to ceiling) when the exchange took place, all testified that they overheard only one loud voice which they recognized as Walden's and which caused people to look up from their work and listen. Sandra Hooper, whose desk was located about 13 feet from Beckett's office, heard Walden say something to I Respondent maintains that the information supplied to Walden was what she asked for. The testimony on this is far from clear. In any event, which was correct is unnecessary to decide since for the purposes here, I shall assume that both sides took these positions in good faith. 2 Sec. 15.60 of the collective-bargaining agreement reads as follows: the effect that "she didn't have to accept this garbage." The other two did not hear what was said but one, Elizabeth Pisko, testified credibly and without denial that when she heard Walden's voice, which was extremely loud, she commented, "there she goes again." In explanation, Pisko testified that on a previous occasion in her office Walden was so loud that Pisko asked her to kindly lower her voice or Pisko "could not have dealings with her." Walden lowered her voice to a whisper. According to Beckett's further testimony, on the basis of the encounter with Walden Beckett issued a written warning for Walden's personnel file. When Beckett confronted Walden with the warning and asked her if she understood it she acknowledged that she did not but said that she would not accept it. Beckett pointed out that he was not asking her to accept it-only that she understand it. Walden reiterated that she would not accept it and added that "it would probably happen again." According to Walden's direct testimony, not having heard from Beckett by 9:45, she went to his office where she asked if he had received her message. He said he had and had tried to call her but the lines were busy. She remarked, "You mean to say the lines are busy all this time?" Beckett replied "That [she] should hope [her] supervisors would be more productive." Walden then held out to Beckett the "little piece of paper" she had received in a large envelope the previous Friday and asked if that was the information he had sent her on Friday. When he acknowledged what it was she asked him, "Well, what is it?" She then continued, saying that "It seems to me I have requested this information many times, we have had this same type of information . . . why is it so difficult, your people are so hard to understand what I am looking for." At this point Beckett "got very upset and . . . accused [her] of storming into his office and talking loud and so forth." She replied that he did not have to tell her how to talk; she knew how to talk. But she asked him for information three or four times, that what he sent her she felt was an insult to her intelligence. He became very annoyed and accused her of shouting at him-which she was not. Anyway, after this she said nothing further and left the office. About a half hour later, according to Walden's further testimony, she was called back to Beckett's office. About what happened with Beckett at this point, Walden testified as follows: When I went to the eight floor and went back into the office, he went into Mr. Nichols' office, he said, will you come with me? And I went in, and he sat behind the desk and I sat in front of the desk. And he said that he was contacting me not because of my responsibili- ties representing the Union, but was as an employer- employee contact. And he began to talk about the way I talked to him. He accused me of disrupting his office. And he also stated that the prior week, the week before, To the extent that service and coverage requirements were met, an employee who is an authorized representative of the Union shall, with reasonable notice and upon request of the Union, be excused without pay or granted leaves of absence without pay to conduct union activities. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I had spoken to a Mr. Olesik in a manner that ... definitely they didn't like. If I ever spoke to a Company supervisor in that tone, I would be subject to strong discipline. And he would get my personnel file from the district that I worked in, overseas D, and he would so make a notation to be entered in my personnel file regarding the matter. I objected. I discussed it with him. And I told him I didn't feel it was fair. And I would definitely object to it because I did not feel that I was abusive and that I was not disrupting to his office. When Walden was further questioned by the General Counsel as to the tone of voice she was using in the first meeting with Beckett, she answered, "I don't know if you would classify me as speaking loud or not, and sometimes I think I have a voice that carries. I wasn't talking loud to him initially. Now, when he started at me about the way I am coming into his office, because he got very upset, I could tell visibly he was upset. He turned very red. He said to me, 'Don't come into my office talking to me like that.' I said, 'Don't tell me how to talk.' And I may have been quite clear." On cross-examination when questioned if she had used the word "garbage" in a discussion with Beckett, Walden would not deny it testifying, "I don't recall using the word 'garbage,' and I have used it. Garbage is garbage. I may have used the word garbage at various times." Elsewhere on cross-examination she denied that she spoke to Beckett in a "sudden loud outburst or uproar"-one of the dictionary definitions of "shout." She also denied telling Beckett, "I thought you would be intelligent enough to interprete my requests." Conclusions In my opinion the evidence here considered in the light of the record as a whole preponderates strongly in favor of Respondent's version which accordingly I accept. And even allowing for an element of exaggeration in Beckett's testimony, I further find that Walden's conduct exceeded the limits permitted her when involved in union business. Granted that union representatives are vouchsafed great leeway in verbal exchanges with management in contract negotiations and grievance settlements. But this is not such 3 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, and recommended Order herein shall, as provided in Sec. a case. This was a peripheral procedural matter totally devoid of substance and I can see very little reason for what I and Respondent obviously consider to be gratuitous conduct on the part of Walden. Nor can one excuse her on the possibility that she did not know better. She demon- strated on the witness stand that she is a very knowledgea- ble person. Moreover, that she knew better was further demonstrated by her having only a week before the run-in with Beckett taken exactly the same position as Beckett took with her. That matter involved her representation of a grieving employee when the complaint was not that the reprimand against the employee was unjustified but that the "tone" and "manner in which it was delivered to the employee was objectionable. In voicing this objection to Beckett at the time Walden relied on a provision of the collective-bargaining agreement (Section 19.30) providing: The Company and the Union recognize that it is in the best interest of both parties, the employees and the public, that all dealings between them continue to be characterized by mutual responsibility and respect .. . In view of the foregoing I shall recommend that the complaint be dismissed. CONCLUSIONS OF LAW 1. American Telephone and Telegraph Co. is an employer engaged in commerce in a business affecting commerce and the Union is a labor organization as those terms are defined in Section 2(2), (5), (6), and (7) of the Act. 2. American Telephone and Telegraph Co. did not violate Section 8(axl) of the Act by its issuance to Anne H. Walden a written warning reprimanding her for her remarks and conduct in a meeting with William R. Beckett on September 17, 1973. On the basis of the foregoing findings of fact, conclu- sions of law and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDERS The complaint shall be and hereby is dismissed in its entirety. 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.