Communications Workers Local 6012 (Southwestern Bell)

COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL) Communications Workers of America, AFL-CIO, Local 6012 (Southwestern Bell Telephone Co.) and Stephen L. Andrew.. Cases 16-CB-2390-4, 16-CB-2390-9, and 16-CB-2390-10 26 August 1985 DECISION AND ORDER BY' CHAIRMAN DOTSON AND MEMBERS •. HUNTER AND DENNIS On 21 February 1985 Administrative Law Judge Steven M. Charno issued the attached decision. The Respondent and the General Counsel filed ex- ceptions and supporting briefs. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record-in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. The judge concluded that the Respondent violat- ed Section 8(b)(1)(A) of the Act by preventing members Elsie Luann Fitzgerald, Christina Thomp- son, and, Connie White from resigning their union memberships and by imposing fines on them for re- turning to work during a strike.' We find no merit in the Respondent's exceptions to these findings. As found by the judge, the -Respondent filed legal proceedings in an Oklahoma district court to col- lect the fines levied against the three individuals mentioned above. The General Counsel contends that the judge erred in failing to conclude, as al- leged, that by filing and prosecuting such state court actions the Respondent violated Section 8(b)(1)(A) of the Act..We'agree. In Bill Johnson's Restaurants v. NLRB, 461 U.S. 731 (1983), the Supreme Court held that the Board may not enjoin a well-founded lawsuit regardless of a plaintiffs alleged retaliatory motivation. The Court observed; however, that its holding did not apply, to "a: suit that has an objective that is illegal under federal law," noting specifically, thatit had previously "upheld' Board orders enjoining unions from prosecuting court suits for enforcement of fines that could not lawfully be imposed under the Act."2 Consistent with Bill Johnson's Restaurants and longstanding Board law, we found recently in'Ma- chinists Local 1769 (Dorsey Trailers), 271 NLRB 911 (1984), that the filing of court actions to collect un- ' Machinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) 2 461 U S at 737-738 fn 5, citing. inter aha, Granite State Joint Board, Textile Workers Union, 187 NLRB 636, 637 (1970), enf denied 446 F 2d 369 (Ist Cir 1971), revd 409 U S 213 (1972) 1499 lawfully imposed fines is an independent violation of Section 8(b)(1)(A) of the Act. Accordingly, we conclude that ._ by commencing and prosecuting state court claims to collect, the fines unlawfully levied against Fitzgerald, Thompson, and White, the Respondent violated Section 8(b)(1)(A) of the Act, and we shall order that the Respondent cease and desist from engaging in such conduct. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Communications Workers of America, AFL-CIO, Local 6012, Tulsa, Oklahoma, its offi- cers, agents, and representatives, shall take the action set forth in the Order as modified. 1. Insert the following as paragraph 1(d) and re- letter the subsequent paragraph. - "(d) Restraining or coercing employees by filing and prosecuting court actions to collect fines .im- posed on any member who returns to work during a strike after resigning 'as a member or after being prevented from resigning by the Respondent." 2. Substitute the attached notice for that of the administrative law judge. - APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT inform you that you cannot resign your membership in Communications Workers of America, AFL-CIO, Local 6012 during a strike or at any other time. WE WILL NOT refuse to accept your oral or writ- ten resignation during a strike or at'any other time. WE WILL NOT charge you with violations of our constitution, subject you to intraunion trials, or impose or threaten to impose,fines on you because you return to work during a strike after you resign your membership or after we prevent you from doing so. • . WE WILL NOT'file and prosecute court actions to collect fines imposed on you because you return to work during a strike after you resign your'member- ship or after we prevent you from doing so. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights 275 NLRB No. 210 1500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' guaranteed you by Section 7 of the National Labor Relations Act. WE WILL rescind the charges and fines imposed against Elsie Luann Fitzgerald, Christina -Thomp- son Burroughs, and Connie White, and WE WILL refund to them any money 'they may have paid as a result of such fines, with interest. WE WILL expunge' all records of the charges brought against the above-named employees and all records of any actions taken as a result of such charges, and WE WILL inform those employees in writing that such-records have been expunged. - COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO, LOCAL 6012 - DECISION STEVEN M.' CHARNO, Administrative Law Judge In response to charges timely filed, a complaint was issued on. August 24, 1984, alleging that Communications Workers of America, AFL-CIO, Local 6012 (Respond- ent) . had violated Section 8(b)(1)(A) of the National Labor Relations Act, by fining Elsie Luann Fitzgerald, Christina-.Thompson, r and Connie White for refusing to honor a picket line after they had unsuccessfully attempt- ed to resign from Respondent. Respondent's answer denies the commission of any unfair labor practice. A hearing was held before me in Tulsa, Oklahoma, on October 22 and 23; 1984 2 Briefs were thereafter filed by the General Counsel, the Charging Party, and Respond- ent under extended due date of December 28, 1984. FINDINGS OF FACT 1. JURISDICTION Southwestern Bell Telephone Company (Bell) is a Missouri corporation which provides telecommunication services to the general public within Oklahoma During the 12 months preceding issuance - of the complaint, Bell, in the course and conduct of its business operations within Oklahoma, purchased and received goods and services valued in excess of $50,000 from points outside the State and had annual gross revenues in excess of $100,000. It is admitted , and I find, that Bell is an em- ployer engaged in commerce within the meaning of the Act Respondent is admitted to be, and I find is, a_ labor or- ganization within the meaning of the Act. - i After the charge-relating to her was filed but before the hearing, Thompson was married and took the name Burroughs For the sake of consistency with the record and briefs, she is referred to by her maiden name throughout the "Findings of Fact " 2 After the hearing opened, a settlement was reached with respect to four additional alleged discriminatees, and the allegations of the com- plaint concerning them were dismissed II: THE-ALLEGED UNFAIR LABOR PRACTICE A Background Respondent conducted a strike against Bell from 12.01 a.m. on August 7 until 1.30 a.m. on August 28, 1983.3 By letter of September 19, Respondent President Harold Roe notified the 37 employees who returned to work during that strike, including Fitzgerald, Thompson, and White, that charges had been filed'against•them and that trials relating to those charges would be held at Re- spondent's hall on October 11. When, the scheduled trials took place, at least 'one of Respondent's members, Cathy Ford, attempted to defend herself by establishing that she had resigned as a member of Respondent It was stipulated that neither the consti- tution of the International nor Respondent's bylaws con- tain any reference to resigning from the Union. During Ford's trial, Roe interpreted this fact to mean "there is no way to resign from the Union The only way you can be a non-member, a dues equivalent, is at the,time you sign up that you do not pay your $2.00 initiation fee." Somewhat inconsistently, Roe explained during Ford's trial that he had received instructions at the time of the strike from the "National Union" to charge any member who worked during the strike without having canceled his or her dues-deduction authorization at least 2 weeks before the expiration of the collective-bargaining agree- inent• with, Bell. Thus, notwithstanding the fact that Re- spondent admittedly received' Ford's written resignation on August 12, -Roe stated at her trial. "I still maintain that she was a member-at the time this strike started, and there is no legal way to get out of the Union. . After these proceedings are over, then that is something else."4 At the conclusion of the trials, fines were assessed by Respondent at the rate of $80 for each day' an employee had worked during the strike. None of these fines took into account the fact that an employee had resigned or attempted to resign from Respondent at the commence- ment of or during the strike.5 By letters of October 13, the employees were notified of the fines assessed against them. Appeal proceedings were held on November 17. On April 13, 1984, Respondent filed collection actions in a All dates hereinafter are 1983 unless otherwise indicated " These findings are based on a tape recording of the October I I trials During the hearing, Roe testified that (1) it was not his position during the trials that members could not resign from Respondent during- the strike, (2) it was his explicit and stated position at the trials that Ford had submitted an effective resignation, (3) he did not receive instructions from the International which prevented Respondent from recognizing member resignations during the strike, and (4) if anyone wanted to resign from Respondent, "all they had to do was notify us " During his testimo- ny, Roe admitted that Respondent at one time had a policy which pre- vented member resignations "any time around the strike period." but he later flatly denied the existence of such a policy Because Roe's testimony . before me was internally inconsistent and uniformly-self-serving, and be- . cause he showed himself to-be blatantly mendacious, I have not credited him on any disputed evidentiary point - - After unfair labor practice charges.were filed aginst Respondent, it adjusted some of the fines to take into account some, but not all, of the written resignations it received from members before or during the strike According to Roe, these adjustments were made "because the National Labor Relations Board told me they had to be" Accordingly, I reject Respondent's argument on brief that its adjustment of fines demonstrated a policy on its part to allow. members to resign during the strike COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL) an Oklahoma district court aginst all of the individuals who had been fined, including Fitzgerald, Thompson, and White ' B. Events Concerning Fitzgerald Fitzgerald was employed by Bell in the same depart- ment as Shirley Rape, a steward and admitted agent of Respondent. Fitzgerald, who was emotionally agitated about, the . impending. strike, had a conversation with Rape on August 5. Fitzgerald stated that she did not wish to go on,strike and that she wanted to resign from Respondent. Rape attempted to dissuade her and stated that Fitzgerald could not resign without being terminat- ed by Bells Fitzgerald returned to work on August 15, did not attend her trial 'on October 13, and had no further con- tact with Respondent until she was notified that she had been fined $1200 for returning to work during the strike The suit filed by Respondent in April 1984 sought to col- lect a $640 fine from Fitzgerald. C. Events Concerning Thompson Thompson was opposed to the strike On August 5, she looked up the telephone number for Respondent's hall When she called that number, the telephone was an- swered by an unidentified individual with the words "union hall." Thompson asked if she could resign from Respondent and was told no 7 It is uncontested that the individuals authorized to answer the telephone at Re- spondent's hall are instructed to provide any information sought by callers or, if'the answerer is unable to do so, to refer the caller to someone who can provide the infor- mation.8 After reading a provision of the collective-bargaining agreement between Respondent and' Bell concerning the cancellation of dues-deduction authorizations, Thompson sent an August 5 letter to Bell's payroll office stating, "effective immediately, I no longer wish to participate as a CWA member". and requesting that her authorization be canceled.9 On August 9, Thompson received a tele- phone inquiry concerning her "letter from 'an unnamed male in Bell's payroll' office. She reiterated her desire to resign from Respondent, and Bell sent her letter to the offices of the Communications Workers of America in St. Louis, Missouri, which received the letter on or 6 Fitzgerald so testified , while Rape denied that the conversation had taken place While it was uncontested that Fitzgerald and Rape worked in close physical proximity, Rape maintained at the outset of her testimo- ny that she "did "not associate" and had never discussed union business with Fitzgerald Subsequently, however. Rape indicated familiarity with details of Fitzgerald's personal life and admitted the existence of at least one con'versation'concermng union business Given Roe's tape-recorded articulation of Respondent's position concerning member `resignations during the` strike, the conversation described by Fitzgerald appears more probable than does Rape's general denial For the foregoing reasons-and based on my observation of the demeanor of both witnesses while testify- ing. I credit Fitzgerald over Rape ' ' ' r Thompson's testimony to this effect was unrebutted 8 Roe so testified- 9 It is uncontested that this portion of the collective-bargaining agree- ment is the only written reference to the process of severing the relation- ship between Respondent and its members Indeed , Roe seemed to state in one variant of his'testimony that cancellation of the authorization was the only way in which a member could resign from Respondent 1501 before August 15 and forwarded it to Respondent The resignation was received by Respondent on August 17 Thompson returned to work on' August 8 and worked throughout the strike She did not attend her trial and was assessed a fine of $1200 The suit filed by Respond- ent in April of 1984 sought to collect the full amount of the assessed fine to D Events Concerning White White also opposed the strike. During the evening of August 5, she 'placed a telephone call to Respondent's hall, which was answered by an unidentified female with the phrase "CWA."11 White stated she could not honor a strike and wanted to resign from Respondent. When she inquired as to the appropriate procedure for doing so, she was informed that there was nothing she could do to resign. White asked if she needed to talk with Roe and was told it was unnecessary Finally, White asked if Respondent needed any information from her and was told no On August 7, Respondent Steward Wanda Centers called White about the Tatter's picket duty. White stated that she could not honor the strike, she'needed to work, and she wanted to resign from Respondent. Centers asked, • "Do you know you can be fined for this," and, White responded yes. White returned to work at Bell on August 8 On approximately August 10, Respondent Sec- retary-Treasurer Faye Hodge called White about the Tat- ter's return to work. White reiterated her decision not to go on-strike and described her August 5 telephone call. Hodge did not respond to these comments. After having friends suggest that she "get something' in writing," White - sent a letter of resignation to Respondent on August 12.12 It was received by Respondent on August 15. - - White did not attend her trial and was notified by Re- spondent's October 13 letter that she had been fined $1200. The suit filed aginst her by Respondent in April of 1984 sought to collect a $480 fine. E. Discussion Recently, the Board held that a union may not unlaw- fully restrict the right of its members to resign. Machin- ists Lodge 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) Fines imposed by a union on its members after they tender resignations" of their memberships and return to work during a strike are therefore violative of Section 8(b)(1)(A) of the Act. Glass & Pottery WorkersLocal 185 (Liberty Glass), 273 NLRB 198 (1984) In this case, the.General Counsel argues that'Respond- ent refused to accept the resignations of Fitzgerald, 10 Respondent's assertion on brief that Thompson's fine was adjusted to take in account Respondent's receipt of her written resignation is with- out record support i l Roe testified that the hall was'empty when he left about 5 p in on August 5 and that "no one" was there to answer the telephone after his departure Rape, however, testified that there were "quite a few people" at the hall when she arrived on the evening of August 5 and that the telephone "rang off the wall " For the reasons set forth in fn 3, supra. I do not credit Roe • " ' 12 The foregoing findings are based on White's unrebutted testimony 1502 - DECISIONS OF' NATIONAL LABOR RELATIONS BOARD Thompson, and White and subsequently imposed fines on them for failing to honor a picket line. Respondent denies that it refused to accept any resignations tendered by its members. Fitzgerald, Thompson, and White con- tacted individuals connected with Respondent in ' order to resign from the Union; all three were told that they could not resign from Respondent In order to determine _ whether Respondent should be held responsible for pre- venting its members from resigning, it is necessary to ex- amine the relationship between Respondent and the indi- viduals contacted by Fitzgerald, Thompson, and White. Respondent -Steward Rape, who was contacted by Fitzgerald, was admitted to be Respondent's agent within the meaning of Section 2(13) of the Act, and the substance of that admission is mandated by relevant case law. See, e.g., Painters Local 1310 (Reliance Electrical), 270 NLRB 506 (1984). The individuals contacted by Thompson and White each answered a telephone call to Respondent's listed telephone number by indicating that the caller had reached Respondent's hall and each then went on to give an impression of competence to conduct union business. I therefore find that the telephone an- swerers were cloaked with apparent authority to respond to questions concerning resignation from the Union and that they were, therefore, Respondent's agents for that purpose. See Plasters Local 90 (Southern Illinois Builders), 236 NLRB 329, 331 (1978). Cf. Teamsters Local 70 (Lucky Stores), 226 NLRB 205, 209-210 (1976); Carpen- ters District Council (Hensel Phelps Construction), 222 NLRB 551, 553 fn. 2 (1976). In addition, Roe's state- ments prohibiting member resignations may be held to constitute ratification of the prohibitions previously ar- ticulated by Rape and the telephone answers. See Electri- cal Workers IBEW Local 3 (L.M. Ericsson Telecommuni- cations), 257 NLRB 1358, 1369 (1981). In the absence. of any prescribed resignation proce- dure, the statements of Respondent's agents prohibiting member resignations effectively prevented Respondent's members from tendering resignations. There can be no meaningful distinction under the facts of this case be- tween preventing the tender of a resignation and refusing to accept it. Accordingly, I find that Respondent pre- vented Fitzgerald, Thompson, and White from resigning their union memberships and that it subsequently im- posed fines on them for returning to work, during a strike. I further find both actions to be violative of Sec- tion 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW. 1. Bell 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 mean- ing of Section 2(5) of the Act. 3 By preventing its members from resigning and by subsequently imposing fines on those members for re- turning to work during a strike, Respondent engaged in unfair labor practices in violation 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. REMEDY Because Respondent engaged in unfair labor practices in violation of Section 8(b)(1)(A)-of the Act, it shall be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the purposes of the Act, including refunding to Fitzgerald, Thompson, and White any moneys they may have paid as a result of the fines imposed against them, with interest computed in the manner prescribed in Florida Steel Corp., 231' NLRB 651 (1977).13 Because Respondent's prohibition of member resignations was widely disseminated and there are indications in the record that few of its members have occasion to visit its headquarters, it does not appear likely that the posting of a notice at Respondent's hall can effectively dissipate the coercive effect of its con- duct. For that reason, Respondent shall be required to mail a copy of the attached appendix to all the individ- uals on its membership rolls, including but not limited to individuals who were members at the time the unfair labor practices found herein were committed. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed14 ORDER The Respondent, Communications Workers of Amer- ica, AFL-CIO, Local 6012, Tulsa, Oklahoma, its offi- cers, agents, and representatives, shall - 1. Cease and desist from (a) Informing its members that they cannot resign their memberships in it. (b) Refusing to accept oral or written resignations ten- dered by its members. (c) Charging any member with a violation of its con- stitution, subjecting any member to intraunion trial or imposing or threatening to impose a fine on any member who returns to work during a strike after resigning as a member or after being prevented from resigning by Re- spondent (d) In any like or related manner restraining or coerc- ing its members in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the purposes of the Act. (a) Rescind the charges and fines imposed against Elsie Luann Fitzgerald, Christina Thompson Burroughs, and Connie White and refund to them any moneys they may have paid as a result of such fines in the manner set forth in the section of this decision entitled "Remedy." (b) Expunge all records of the charges brought against the employees named in subparagraph (a) and all records of any actions taken as a result of such charges, and inform the employees in writing that such records have been expunged. 13 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 14 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses COMMUNICATIONS WORKERS LOCAL 6012 (SOUTHWESTERN BELL) (c) Post at - all places -where notices to -members and employees are posted copies of the attached notice marked "Appendix."' 5 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in " "5 If 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 Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order,of the Nation. al Labor Relations Board , r 1503 conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure, that the notices are not altered, defaced, or covered by any other materi- al. (d) Mail a copy of the attached notice marked "Ap- pendix" to each of its members, including but not limited to all individuals who were members at the time the unfair labor practices found herein were committed. (e) Notify the Regional Director in writing within 20 days from the date this Order what steps Respondent has taken to comply