Federation of Telephone Workers of Pennsylvania

FEDERATION OF TELEPHONE WORKERS Federation of Telephone Workers of Pennsylvania (Bell of Pennsylvania) and Paul A. Shaffer. Case 6- CB-3385 October 15, 1976 DECISION AND-ORDER By CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On January 20, 1976, Administrative Law Judge Robert Cohn issued the attached Decision in this proceeding. Thereafter, the 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 Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. We cannot find that the General Counsel has shown by a preponderance of the evidence that the Respondent illegally threatened employee Paul Shaf- fer in violation of Section 8(b)(1)(A) of the Act. As the Administrative Law Judge found, the rec- ord shows that for 30 years Respondent and the Em- ployer, Bell of Pennsylvania, have been parties to successive collective-bargaining agreements which, until the current contract was executed in July 1974, made no provision for union security. In mid-1974 the parties executed a new 3-year contract containing a "Modified Agency Shop Clause" which provides in pertinent part that: Effective January 1, 1976, all employees . , shall become members of the [Respondent] or pay or tender to the [Respondent] amounts equal to periodic dues as a condition of employ- ment . . . . Paul Shaffer has been a unit employee since 1953 and he was also a voluntary member of the Respon- dent Union for several years. However, in 1960 Shaf- fer was expelled from the Respondent, apparently for refusing to join in a work stoppage which the Union had sanctioned. There is no indication from the rec- ord that Shaffer's expulsion from the Union in any way affected his employment status and, at the pres- ent time, he is still employed in the bargaining unit. Shaffer first learned of the agency shop clause by reading a newsletter prepared by the Employer short- ly after the new contract was executed. Shaffer also 427 discussed the new clause with his immediate supervi- sor. It appears that Shaffer was interested in regain- ing his union membership sometime after the new contract was executed but before the agency shop clause went into effect. Toward that end, Shaffer contacted the Respon- dent's agent, Alfred Arnal, and, in May 1975, Arnal informed Shaffer that: The requirements for membership were the same as they had always been, which was a pay- ment of all back dues to 1960 plus any fines and assessments due and that other than that, I [Shaffer] would be required to tender the Union dues in January of 1976 whether I was or was not a member, but these were the requirements for becoming a member. Based on the forgoing testimony, the Administra- tive Law Judge found that the Respondent had erect- ed an "illegal barrier" to Shaffer's obtaining mem- bership under the agency shop provision by requiring, as a condition of membership under the agency shop clause, that Shaffer pay back dues for a period when he was under no obligation to pay dues as a condition of employment. We agree with the Administrative Law Judge that a union may not at- tach, as a condition for readmission to membership under an agency shop clause, the payment of dues which accumulated after an applicant's expulsion from the Union) As noted by the Administrative Law Judge and as stated by the Board in Simmons Company:' It is well settled that an employee may not be required to pay back dues for a period when membership was not validly required as a condi- tion of employment. However, for the following reasons, we do not agree that in the circumstances of this case the evidence preponderates toward a finding that the Respondent threatened to impose illegal conditions on Shaffer's option to become a member of the Respondent un- der the agency shop provision. At the outset, it is clear that the Administrative Law Judge's conclusion that the Respondent violated Section 8(b)(1)(A) is bottomed on an assumption 1 We note that there is no question here involving an attempt by the Respondent to collect any dues, fines, or assessments (or a reinstatement fee in lieu thereof) due and owing prior to Shaffer's expulsion from membership in the Respondent In Simmons Company, 150 NLRB 709 (1964), the Board permitted a union to require under Sec 8(b)(1)(A) that a member, who was not in "good standing" with the union but sought to retain her employment, select from regaining "good standing" by paying back dues (which accumu- lated while the member was on a leave of absence but still in the union), regaining "good standing" by paying a reinstatement fee, or leaving the union but paying the agency fee 2 Supra at 712 226 NLRB No. 74 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the requirement that Shaffer pay back dues, as- sessments , and fines was to apply after January 1, 1976, the effective date of the agency shop clause However, in reaching this result, the Administrative Law Judge apparently relied on only the May 1975 conversation, quoted above, and failed to consider testimony regarding two subsequent conversations between Shaffer and Arnal. Thus, in late September 1975, Shaffer again approached Arnal, and as Shaf- fer testified: "I demanded Union membership of him feeling that perhaps he had not understood my earli- er position." And, Shaffer testified, during a conver- sation on October 3 he and Arnal reviewed the "terms which were required at that time for that 'par- ticular time'] for membership." In our view, these three conversations, taken as a whole, strongly suggest that Shaffer was inquiring about obtaining union membership before January 1976. Thus, Shaffer admittedly emphasized that he was "demanding" membership and was concerned about the terms which were required "at that particu- lar time" (i.e., in May, September, and October, 1975). In these circumstances, it is not at all clear whether Arnal considered Shaffer's present demands for immediate membership in the context of what would be required of Shaffer after January 1976. Rather, despite the conversations having been initiat- ed by Shaffer's learning of the later-to-be-implement- ed agency shop clause, it appears probable, based on the evidence, that Arnal was discussing in May, Sep- tember, and October with Shaffer the then current requirements. Accordingly, we are unwilling to infer that Arnal made any threats to Shaffer concerning what would be required of him in January 1976.3 Based on this record, we cannot find that the General Counsel has shown by a preponderance of the evidence that the Respondent threatened to condition Shaffer's op- tional rights of membership under the agency shop clause on the payment of any back dues, fines, or assessments that accumulated after Shaffer's prior expulsion from the Respondent. We shall therefore dismiss the complaint in its entirety. ORDER DECISION STATEMENT OF THE CASE ROBERT COHN, Administrative Law Judge- This case, heard at Pittsburgh, Pennsylvania, on October 14, 1975,1 pursuant to a complaint and notice of hearing dated Au- gust 29 (based on an original charge filed on June 18), presents the question whether Federation of Telephone Workers of Pennsylvania (herein the Respondent or Union) violated Section 8(b)(1)(A) of the National Labor Relations Act, as amended (herein the Act), when, in April or May, an agent of Respondent illegally threatened that Paul A. Shaffer, an individual (herein the Charging Party), an employee of Bell of Pennsylvania, would have to pay or tender to Respondent certain fines or dues for a period of time when he was not required to be a member of Respon- dent, as more fully appears hereinafter. Respondent's an- swer, while admitting the jurisdictional allegations of the complaint, denied that it had engaged in any unfair labor practices. At the hearing, all parties were given full opportunity to present evidence, to examine and cross-examine the wit- nesses, to offer oral argument, and to file briefs. Oral argu- ment was waived, but helpful, posthearing briefs have been filed by counsel for the General Counsel and by counsel for the Respondent, which have been duly considered Upon the entire record in the case, including my obser- vation of the demeanor of the witnesses, and a consider- ation of the arguments of counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION The complaint alleges, the answer admits, and I find that at all times material Bell of Pennsylvania (herein the Em- ployer) is a Pennsylvania corporation engaged as a public utility in providing telephone communications and related services During the 12-month period preceding the is- suance of the complaint herein, which period is representa- tive of its business operations, the Employer had gross rev- enues in excess of $500,000, and received goods and materials valued in excess of $50,000, for use at its Pennsyl- vania places of business, directly from points outside the Commonwealth of Pennsylvania. I find that the Employer's operations affect commerce within the meaning of Section 2(2), (6), and (7) of the Act. Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint here- in be, and it hereby is, dismissed in its entirety. i As the hearing in this case took place in October 1975, there is, of course , no evidence as to what requirements , if any, the Respondent at- tempted to enforce on and after January I. 1976 If. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that at all times material the Respondent is, and has been, a labor organization within the meaning of Section 2(5) of the Act. All dates hereinafter refer to the calendar year 1975, unless otherwise indicated FEDERATION OF TELEPHONE WORKERS 429 Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The facts giving rise to the issue in this case are not essentially in dispute and may be briefly stated as follows. The Charging Party commenced his employment with the Employer in 1953 as a switchman in the Employer's plant department. At all times material, the employees of this department have been represented by the Respondent for purposes of collective bargaining with the Employer. A few years later, the Charging Party voluntarily joined the Respondent. There was no union-security provision in the contract between the Employer and the Respondent at that time. During 1960, a labor dispute arose between the Employ- er and the Respondent which resulted in a work stoppage. The Charging Party was unsympathetic with the Respon- dent's position during the work stoppage and sought to resign his membership. However, the Respondent appar- ently refused to accept his resignation and later expelled him for working during the work stoppage. Nevertheless, the Charging Party's employment with the Employer was not affected, and his status as an employee has continued up until and during the hearing in this case. Since he has not been a member of the Union since 1960, he has not paid any membership dues to that organization since that time. On or about July 28, 1974, the Respondent and the Em- ployer executed the current collective-bargaining agree- ment covering the unit which included the plant depart- ment employees. This agreement, for the first time in the history of the collective-bargaining relationship between the Employer and the Respondent, contained a union-se- curity clause denominated in the record as a "Modified Agency Shop Clause," as follows: 24.03-Effective January 1, 1976, all employees except occasional employees shall ,become members of the Union or pay or tender to the Union amounts equal to periodic dues as a condition of employment ex- cept that this condition shall not apply to employees who are hired or who enter the bargaining unit after December 1, 1975, until on'or after the thirtieth day after such hire or entrance, whichever of these dates is later until the termination of this contract.2 In August or September 1974, the Employer circulated information to the employees notifying them of the changes in the collective-bargaining agreement. Shortly thereafter, the Charging Party discussed these matters with his immediate supervisor, who told him that "as of January 1, 1976, [the Charging Party] would tender dues to the Company (sic) or [the Charging Party] would no longer be employed by the Company." 3 Following this conversation with his supervisor, the Charging Party went to the Re- 2 G.C. Exh. 3. 3 Testimony of Shaffer. The supervisor was not called as a witness at the hearing, and therefore the statements attributed to him by Shaffer constitute only hearsay evidence as respects the Respondent. Upon objection of the Respondent, I allowed the testimony to remain on the record but not for the purpose of establishing the truth of the matter asserted. spondent's "branch representative," one Alfred J. Arnal, and asked him whether, in view of the changes in the con- tract, the Union intended to make any changes in their conditions of membership. Arnal replied that he would have to check with someone higher in the Union, and would get back to Shaffer. About 6 months later, in April or May, Arnal orally responded to Shaffer's request for information as follows: After a period of approximately six months, in April or May of 1975, he came back with the answer that the requirements for membership were the same as they had always been, which was a payment of all back dues to 1960 plus any fines and assessments due and that other, than that; I would be required to tender the union dues in-January of 1976 whether I was or was not a member, but these were the requirements for becoming a member.' B. Analysis and Concluding Findings In Simmons Company,5 the Board stated: It is well settled that an employee may not be re- quired to pay back dues for a period when member- ship was not validly required as a condition of em- ployment.' There can be no question that in the conversation be- tween Shaffer and Arnal in the spring of 1975, the latter conveyed the information that if the Charging Party con- templated and desired to regain membership in the Union-from which he was expelled in, 1960-he would have to pay the fine and back dues which had accumulated during that period of time. Thus it is clear that the Union was requiring as a condition of membership the payment of back dues for a period when membership was not val- idly required as a condition of employment. It seems equal- ly clear that had the Union and the Employer agreed on a union-security clause which made membership in the Union a condition of employment, and, the Union insisted on the payment of the Charging Party's back dues as a condition of membership (and therefore a condition of em- ployment), a violation of Section 8(b)(1)(A) would have occurred.' The critical question remains whether, under the stated facts, a violation occurs where the Union and Employer have agreed upon a lesser form of union security, i,e., a so-called agency shop, where the, employee is not required to become a member of the Union as a condition of em- ployment so long as he tenders the dues and fees normally required of members. At first blush, one might reason that no violation of the Act occurred because the Union's de- mand for back dues in order to attain membership was protected by the proviso to Section 8(b)(1)(A),8 since it left 4 Testimony of Shaffer. Arnal testified that on this occasion he told Shaf- fer the information that he (Arnal) "got from the division office of what, of his fines and his back dues to become an active member." 5 150 NLRB 709, 712 (1964) 6 See also Namm's, Inc, 102 NLRB 466, 467-468 (1953) 7 Namm's, Inc, supra s This section of the Act provides that "It shall be an unfair labor prac- tice for a labor organization or its agents to restrain or coerce employees in Continued 430 DECISIONS'OF NATIONAL LABOR RELATIONS BOARD the Charging Party's employment intact as long as he ten- dered the normal dues and fees required of members. This accords with the congressional concern "for protecting the individual employee in a right to refrain from union activi- ties and to keep his job even in a union shop." I But avail- able precedent indicates that, even under an agency shop, the employees must be accorded the option of becoming a member of the union, and that the union violates the Act when it places an illegal barrier to this option. Thus in Local 1104, Communications Workers of America, AFL-CIO (New York Telephone Company),10 the Board and court decided that where an employee is denied mem- bership in a union because of his engagement in protected activity, an agency shop clause cannot be enforced against him. The Communications Workers case actually involved two groups of employees. The first was a group of "strike- breakers" who applied for membership in the union follow- ing a strike and the union denied their applications solely because they had not participated in the strike. The em- ployees then refused to tender amounts equivalent to union dues under the agency shop provision; whereupon, the union demanded their discharge. The Board and the court held that the strike itself was unlawful under the Act, and the union was not privileged to rely on the proviso to Sec- tion 8(b)(1)(A) where its rules frustrate national labor poli- cy. It was therefore held that the union's conduct violated Section 8(b)(1)(A) and (b)(2) of the Act. More analogous to the case at bar is the second category considered in Cummunications Workers-the so-called Rig- by case. Rigby, an employee of the employer, honored the union's picket lines during the strike, but engaged in orga- nizational activities on behalf of a rival union soon after the strike's end. His efforts proved unsuccessful, and he thereafter applied for membership in the Communications Workers union. The latter denied his application because of his activities on behalf of the rival union; whereupon, Rigby refused to tender any more dues, and the union at- tempted to invoke the agency shop clause to obtain his discharge. The court of appeals, in upholding the Board's decision, noted the discussion of the agency shop by the Supreme Court in N.L R.B. v. General Motors Corporation, 373 U.S. 734 (1963`), wherein the Court upheld the legality of such provision under the Act. The court of appeals inter- preted the Supreme -Court's understanding of what an agency shop entails; as follows: "'[It] places the option of membership in the employee while still requiring the same monetary support as does the union shop. 373 U.S. 734 at 744'." The court went on to state: If the locals prevail here, they will have arrogated to themselves the employees' choice regarding union membership while nonetheless requiring them to pay dues. A union should not, under the circumstances here presented, be entitled to exact dues from employ- ees after depriving them of their membership options the exercise of the nghts guaranteed in section 7 Provided, That this para- graph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein." 9 See Union Starch & Refining Company, 87 NLRB 779, 784 (1949) 10 211NLRB 114 (1974), enfd. 520 F 2d 411 (C A 2, 1975), cert denied 423 US 1051 (1976). by excluding them from its ranks. This conclusion fol- lows rather easily in the Telco case, where the exclu- sion itself was unlawful; the Rigby case, where the exclusion was apparently proper, is more difficult, but in the light of the considerations, set forth in the previ- ous paragraph we see no reason for reaching a differ- ent decision. 11 In the case at bar, as in the Rigby case above, the Union seeks to deprive the employee of membership status be- cause that employee engaged in protected activity under Section 7 of the Act. In the Rigby case, the protected activ- ity was soliciting for a rival union; here, the protected ac- tivity was refraining from financial support of the Respon- dent at a time when the Respondent was not legally entitled to exact such support. In either case, the union was not entitled to arrogate to itself the employee's option un- der the agency shop even though it could not legally cause his discharge of he tendered the normal dues and fees.12 Arnal's statement to the Charging Party threatened that the latter would either have to pay back union dues for a period of time when he was not legally, obligated to do so, or pay the equivalent of union dues commencing in Janu- ary 1976; without according him the rights of membership on the same 'terms as accorded all other employees. This option the Union was not legally privileged to offer.13 The Respondent here seeks to further distinguish the Cummunications Workers case by noting that there has been no attempt at enforcement of the agency shop provi- sion as of the time of the complaint or hearing herein- noting that the contract itself provides that the agency shop does not become effective until January 1, 1976. However, it is well settled that "a union may not lawfully threaten to do what it would be unlawful for it to do." 14 However the Respondent further argues that Arnal was not an agent of the Respondent at the time the alleged threat to the Charging Party was made., I cannot agree with such contention. The record is clear that at all times mate- rial Arnal was the branch representative of Local No. 44 of the Respondent. As such, he represented the Union at grievance discussions.15 The constitution of the Respon- ' dent obligates the branch representative to "Represent the interest of the Union membership in his Branch [and] .. . [c]onduct at least four meetings of the Branch Membership each year [and] . . . [u]nless otherwise excused, attend all meetings of his branch, Local, Division or Executive Board when his attendance is required [and] ... [s]ign and sub- scribe to an oath of office ...." 16 520 F.2d at 419 12 The Simmons case, supra, relied on by the Union, is distinguishable There, the Board found that "both [the employee] and the Union viewed _[the employee] as a member of the Union at all times " The question in- volved in that case was the alternatives posed by the union in order to enable the employee to achieve "good standing," and the union offered her two alternatives Here, the Charging Party had been expelled from the Union for some 14 years, and the question was not how to achieve "good standing," but how to regain membership 13 Communications Workers, supra 14 The Eclipse Lumber Company, Inc, 95 NLRB 464, 473 (1951) s See G C Exh. 6 which is entitled "Joint Conference Between the Bell Telephone Company of Pennsylvania and The Federation of Telephone Workers of Pennsylvania-Southern District-Operations Department- Plant Western Area" 16 See G C. Exh 4, art 4 FEDERATION OF TELEPHONE WORKERS In addition, a "representative of the Union" is defined in the collective-bargaining agreement as "one of the repre- sentatives of the Union elected pursuant to the Union's constitution or any higher ranking union official" (sec. 1.05). The record shows that on February 14, 1973, the Respondent notified the employer's personnel supervisor that Arnal had been elected for a period of 3 years as one of the branch representatives of Local No. 44 of the Re- spondent. Finally, as relates to the circumstances in this case, Ar- nal was specifically designated as an agent of the Respon- dent to relay the information concerning the back dues and fines to Shaffer. As Arnal testified: "I told him the infor- mation I got from the division-office of his fines and back dues to become an active member." Based on all of the foregoing, I conclude and find that at all times material Arnal was'an agent of the Respondent, and therefore Respondent was responsible for the state- ments he made to the Charging Party on the occasions presented. I conclude and find, based on substantial evidence in the record, that by the statements made by Arnal to the Charg- ing Party in April or May, the Respondent restrained and coerced the Charging Party with respect, to his Section 7 rights, and therefore violated Section 8(b)(l)(A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth above, occur- ring in connection with the interstate operations of the em- ployer, have a close, intimate, and substantial relationship 431 to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices proscribed by Section 8(b)(1)(A) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. CONCLUSIONS OF LAW 1. The Bell Telephone Company of Pennsylvania is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. Federation of Telephone Workers of Pennsylvania, Respondent herein, is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with the requirement that they pay amounts equivalent to union dues, while simulta- neously denying membership to them unless they paid back dues or fines to the,Respondent for a period of time when they were not legally obligated to do so, Respondent restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices within the meaning of 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. [Recommended Order omitted from publication.]