South Central Bell Telephone Co.

SOUTH CENTRAL BELL TELEPHONE CO. South Central Bell Telephone Company and Commu- nications Workers of America, AFL-CIO. Case 5-CA-7421 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO Upon a charge filed on September 10, 1979, by Communications Workers of America, AFL-CIO (herein called the Union), the General Counsel of the National Labor Relations Board, by the Re- gional Director for Region 15, issued a complaint dated February 13, 1980, and an amended com- plaint dated February 20, 1980, against South Cen- tral Bell Telephone Company (herein called Re- spondent). The amended complaint alleged that Re- spondent violated Section 8(a)(1) and (3) of the Act by disciplining five named union stewards more se- verely than other employees who had called in sick, because of their status as union representa- tives. Copies of the charge and of the complaint, amended complaint, and notice of hearing were duly served on Respondent and the Union. On February 27, 1980, Respondent filed an answer to the amended complaint, denying the commission of any unfair labor practices. On various dates in June 1980, the parties execut- ed a stipulation of facts and a motion to transfer proceeding to the Board, wherein they waived a hearing before an administrative law judge and agreed to submit the case to the Board for findings of fact, conclusions of law, and a Decision and Order based on a record consisting of the stipula- tion of facts and attached exhibits. On July 16, 1980, the Board issued an order granting the motion, approving the stipulation, and transferring the proceeding to the Board. Thereafter, the Gen- eral Counsel, Respondent,' and the Union filed briefs. 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. Upon the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following finding: I. JURISDICTION Respondent is now, and has been at all times ma- terial herein, engaged in the business of providing Respondent has requested oral argument. This request is hereby denied inasmuch as the record, the exceptions. and the briefs adequately present the issues and the positions of the parties. 254 NLRB No. 32 telecommunications services within the States of Louisiana, Kentucky, Mississippi, Tennessee, and Alabama, as I of 19 companies associated with American Telephone and Telegraph, with its prin- cipal offices located in Birmingham, Alabama. The only facility involved in this case is Respondent's facility located in Hammond, Louisiana. During the past 12 months, a representative period, Re- spondent had gross revenues in excess of $1 mil- lion. During this same period, Respondent pur- chased and received goods valued in excess of $50,000 for use at its Louisiana facilities directly from sources located outside the State of Louisi- ana. The parties stipulated, and we find, that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that the Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Stipulated Facts Respondent and the Union were parties to a col- lective-bargaining agreement effective August 7, 1977, to August 9, 1980, which covered, inter alia, the employees employed at Respondent's Ham- mond, Louisiana, facility. This contract contained the following provisions: ARTICLE 21 ADJUSTMENT OF GRIEVANCES 21.05 A. As the parties have agreed on proce- dures for handling complaints and grievances, they further agree that there will be no lock- outs or strikes during the life of this Agree- ment. ARTICLE 28 RESPONSIBLE UNION-COMPANY RELATIONSHIP 28.01 The Company and the Union recognize that it is in the best interests of both parties, the employees and the public that all dealings between them continue to be characterized by mutual responsibility and respect. To insure 315 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that this relationship continues and improves, the Company and the Union and their respec- tive representatives at all levels will apply the terms of this Contract fairly in accord with its intent and meaning and consistent with the Union's status as exclusive bargaining repre- sentative of all employees in the unit. Each party shall bring to the attention of all employ- ees in the unit, including new hires, their pur- pose to conduct themselves in a spirit of re- sponsibility and respect and of the measures they have agreed upon to insure adherence to this purpose. On July 31, 1979, 21 of 23 unit employees who were scheduled to report to work at Respondent's Hammond, Louisiana, facility called in sick. On August 1, 1979, 19 of 23 employees who were scheduled to work at the Hammond facility again called in sick. Respondent believed that these em- ployees were engaged in an unprotected strike in violation of the contractual no-strike provision. Therefore, Respondent gave 2-day suspensions to all employees who were absent only on July 31, gave 4-day suspensions to all employees who were absent on both July 31 and August 1, and gave ad- ditional 5-day suspensions on top of the 2- or 4-day suspensions to five union stewards who had been absent on one or both of those days. Thus, Union Stewards George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga each received 9-day suspen- sions, and Union Steward Sidney Alexander re- ceived a 7-day suspension. The suspension notices given to all rank-and-file employees stated: [Name of employee] was suspended for [number] days from [date] to [date] for his par- ticipation in an unauthorized walkout. He is advised that further occurrences of this nature will result in discharge, barring unusual miti- gating circumstances. The suspension notices given to all five union ste- wards contained the above language, with an addi- tional sentence stating: "The fact that [name of em- ployee] is a union representative was taken into ac- count in determining the length of the suspension." On at least one previous occasion, in 1973, Re- spondent had imposed longer suspensions on union stewards who participated in a strike in violation of the contractual no-strike clause than on rank-and- file employees who also participated. An arbitrator found Respondent's imposition of more severe dis- cipline on the union stewards in that case to be warranted because of the stewards' higher degree of responsibility than other employees during il- legal work stoppages. B. Contentions of the Parties The General Counsel and the Union contend that Respondent imposed more severe discipline on the five union stewards solely because of their status as union officials, thus discriminating against them in violation of Section 8(a)(3) of the Act. They note that there is no evidence the five union stewards urged support of or sought to induce em- ployee participation in the sickout and that the col- lective-bargaining agreement does not require the Union or its officials to take affirmative steps to prevent or end unauthorized work stoppages. Therefore, they contend that since the stewards merely participated in the work stoppage along with other employees, Respondent unlawfully based its more severe penalties for the stewards on the stewards' union status rather than on any con- duct by the stewards differentiating the stewards from other employees. Finally, they contend that the previous arbitration decision upholding greater discipline for stewards is not controlling inasmuch as it was not based on any particular contract pro- visions and its holding is repugnant to the Act. Respondent contends that the Union has agreed to perform certain obligations under the contract, including the enforcement of the no-strike provi- sion, and that it was entitled to discipline the union stewards for breaching their responsibility as union officials to abide by the contract. Respondent notes that employees reasonably depend upon the ste- wards to advise them on matters of contract inter- pretation and that, therefore, the stewards' actions in participating in an unprotected strike may prop- erly be characterized as overt acts in condonation and leadership of the illegal work stoppage. Re- spondent urges the Board to overrule its recent cases finding that greater discipline of union offi- cers for participating in illegal strikes is discrimina- tory under Section 8(a)(3) of the Act, noting that the Board's policy is disruptive of established col- lective-bargaining relationships and does not take into account the parties' agreement as to their re- sponsibilities under the contract. Finally, Respon- dent contends that the express language of the con- tract as well as the previous arbitration decision clearly indicate the Union agreed to allow Respon- dent to discipline stewards more severely than other employees for participating in such a strike in violation of the contract and that such a waiver of the stewards' rights is not repugnant to the Act. C. Analysis and Conclusions The Board has held that it is a violation of Sec- tion 8(a)(3) and (1) of the Act for an employer to single out union stewards for discipline where the 316 SOUTH CENTRAL BELL TELEPHONE CO. stewards merely participated in an unprotected strike along with other employees. 2 In so conclud- ing, the Board reasoned that such different treat- ment of stewards must necessarily be based upon the stewards' status as union officers rather than upon their conduct as employees, since the ste- wards had engaged in the same actions as other employees. The Board held that, where a steward had not instigated or led an unprotected work stop- page, he could not be disciplined for his "lack of actions as a steward" in failing to take steps to ter- minate the work stoppage.3 We continue to adhere to this analysis of the law. In this case, Respondent admittedly imposed longer suspensions on the five union stewards who participated in the sickout than on other employees who also participated. Further, the suspension no- tices given to the five union stewards expressly in- dicated that the stewards' status as union represen- tatives was the basis for their longer suspensions. There is no evidence in the record to indicate that the five union stewards engaged in any activities different from those engaged in by other employ- ees, such as urging support of or seeking to induce employees to participate in the work stoppage. Rather, the evidence indicates that the five union stewards merely participated in the work stoppage along with most of the other employees. Thus, Re- spondent clearly singled out the five union ste- wards for different treatment than other employees, based solely upon their status as union representa- tives, and thereby violated Section 8(a)(3) and (1) of the Act. 4 IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminatorily imposed longer disciplinary suspensions on Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga, than on other employees 2 Bethlehem Steel Corporation, 252 NLRB No. 138 (1980); Gould Corpo- ration, 237 NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir. 1979); Precision Castings Company, Division of Aurora. a wholly-owned sub- sidiary of Allied Products Corporation, 233 NLRB 183 (1977). 3 Gould Corporation, supra at 881. Cf. Midwest Precision Castings Com- pany, 244 NLRB 597 (1979), however, where the Board held that an em- ployer did not violate the Act by holding a steward to a higher standard of conduct than other employees in disciplining the steward for urging support of and inducing employee participation in an unauthorized, illegal work slowdown. 4 Despite Respondent's contention, we see no reason to give deference to the prior arbitration decision finding Respondent's actions proper under the contract. See Indiana & Michigan Electric Company, 237 NLRB 226 (1978). enforcement denied 599 F.2d 227 (7th Cir. 1979).1 who participated in the work stoppage of July 31 and August 1, 1979, we shall order that Respon- dent rescind its discipline of Alexander, Blades, Jenkins, Neal, and Stanga only to the extent that their suspensions exceeded those imposed on other employees. 5 We shall also order Respondent to make the above-named employees whole for any loss of earnings or other benefits they suffered as a result of the discrimination against them. Backpay shall be computed as prescribed in F. W Woolworth Company, 90 NLRB 289 (1950), with interest there- on to be computed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977). 6 CONCLUSIONS OF LAW 1. Respondent South Central Bell Telephone Company is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Communications Workers of America, AFL- CIO, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. 3. By suspending Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga for 5 days longer than other employees who participated in the work stoppage of July 31 and August 1, 1979, solely because they were union representatives, Respondent has violated Sec- tion 8(a)(3) and (1) of the Act. 4. Respondent's violations of Section 8(a)(3) and (I) of the Act are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, South Central Bell Telephone Company, Ham- mond, Louisiana, its officers, agents, successors, and assigns, shall: i. Cease and desist from: (a) Discriminating against its employees by giving more severe discipline to union stewards than to other employees because of their status as union representatives. (b) In any like or related manner interfering with, restraining, or coercing its employees in the 5 See Miller Brewing Compoany, 254 NLRB No. 24 (1980). For the rea- sons set forth in his concurring opinion in Miller Brewing Company. supra,. Member Jenkins would order Respondent to rescind the entire discipline imposed on the five union stewards rather than just the portion of their suspensions which exceeded those imposed on rank-and-file employees. 6 See. generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 317 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purposes of the Act: (a) Rescind the discriminatory suspensions given to Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga for their participa- tion in the work stoppage of July 31 and August 1, 1979, and expunge from their records any reference to those suspensions. (b) Make Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga whole for any loss of earnings or other benefits they suf- fered as a result of the discrimination against them, in the manner set forth in "The Remedy" section of this Decision. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of busines in Hammond, Louisiana, copies of the attached notice marked "Appendix." 7 Copies of said notice, on forms pro- vided by the Regional Director for Region 15, after being duly signed by Respondent's representa- tive, 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 employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER PENELLO, dissenting: Contrary to my colleagues, I would dismiss the complaint in this case. I would find that Respon- dent did not violate Section 8(a)(3) and (1) of the Act by disciplining Union Stewards Alexander, Blades, Jenkins, Neal, and Stanga more severely than other employees who participated in an un- protected work stoppage, since they had a higher duty as union officials to enforce the contractual no-strike provision. I continue to adhere to my analysis of the law as set forth in my dissenting opinion in Gould Corpo- 7 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ration, 237 NLRB 881 (1978), enforcement denied 612 F.2d 728 (3d Cir. 1979), and in my concurring opinion in Midwest Precision Castings Company, 244 NLRB 597 (1979).8 As I emphasized in those opin- ions, my view is that a union official who acquires a battery of "benefits and protections" because of his position with the union must also be held ac- countable to fulfill certain "duties and responsibil- ities" inherent in that position of authority and that foremost among those "duties and responsibilities" is the enforcement of a no-strike clause in a collec- tive-bargaining agreement. Thus, I concluded that an employer could lawfully hold a union official to a higher standard of conduct than other employees because of the official's responsibilities under the contract.9 In this case, there is no dispute that the five union stewards participated in an unprotected "sickout." Further, there is no evidence that the stewards ever made any attempt to get the employ- ees to end the work stoppage. In light of theses facts, I would find that the stewards breached their primary responsibility as union officials to enforce the contract, by participating in a work stoppage in violation of the no-strike clause of the contract and thereby effectively demonstrating the Union's ap- proval of the employees' illegal action. I would, therefore, find that Respondent acted lawfully in holding them to a higher standard of conduct and disciplining them more harshly than other employ- ees who participated in the illegal work stoppage. Accordingly, I dissent. s See also my dissenting opinions in Bethlehem Steel Corporation. 252 NLRB No. 138 (1980), and Metropolitan Edison Company, 252 NLRB No. 147 (1980). 9 See also Indiana & Michigan Electric Company v. .L.R.B., 599 F.2d 227 (7th Cir. 1979), denying enforcement of 237 NLRB 226 (1978). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The that and fore National Labor Relations Board has found we violated the National Labor Relations Act has ordered us to post this notice. We there- notify you that: WE WILL NOT discriminate against our em- ployees by giving more severe discipline to union stewards than to other employees be- cause of their status as union representatives. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed 318 SOUTH CENTRAL BELL TELEPHONE CO. them in Section 7 of the National Labor Rela- tions Act, as amended. WE WILL rescind the discriminatory suspen- sions given to Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga for their participation in the work stop- page of July 31 and August 1, 1979, and ex- punge from their records any reference to those suspensions. WE WILL make Sidney Alexander, George Blades, Mike Jenkins, Ronny Neal, and Gary Stanga whole for any loss of earnings or other benefits they suffered as a result of our dis- crimination against them, together with inter- est. SOUTH CENTRAL BELL TELEPHONE COMPANY 319