Communications Workers Local 4354 (American Telephone)

COMMUNICATIONS WORKERS LOCAL 4354 (AMERICAN TELEPHONE) 1173 Communications Workers of America, Local 4354, AFL-CIO (American Telephone and Telegraph Company) and Julia A. Jefferson and Windy K. Holliman. Cases 9-CB-6608 and 9-CB-6614 July 26, 1988 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On March 10, 1988, Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. Charging Party Julia A. Jefferson filed excep- tions and a supporting brief. 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 supporting brief and has decided to affirm the judge' s rulings, findings,' and conclusions, and to adopt the recom- mended Order. In adopting the recommended Order, we agree with the judge, as more fully set forth by him, that Jefferson was a member of Respondent CWA Local 4354 when she crossed its picket line on June 23 and 24, 1986. The judge found that when Jefferson was hired by Ohio Bell in 1973 she joined CWA Local 4310 and signed a dues-checkoff card. In 1983, following AT&T's divestiture of Ohio Bell, Jefferson was assigned to AT&T's Worthing- ton facility. Although Worthington employees were represented by the Respondent, CWA Local 4354, rather than by CWA Local 4310, Jefferson neither resigned her membership nor canceled her dues checkoff. On the contrary, Jefferson support- ed the Respondent against Local 4310's rival claims by signing a petition in 1984 and by voting in a 1985 CWA-conducted election restricted to Wor- thington members. After the Respondent won this intraunion election, and the CWA designated it as the Worthington representative, the judge found, crediting the Respondent's witnesses, that Jeffer- 1 There were no exceptions to the judge's dismissal of Case 9-CB- 6614 Charging Party Jefferson has excepted to some of the judge's credibil- ity findings. The Board's established policy is not to overrule an adminis- trative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Stand- ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing the findings. It is unclear from his decision whether the judge stated that two of the Respondent's officials asked Jefferson to sign a union membership card or a dues-checkoff card in early 1986. In fact, she testified that she was asked to sign a membership card . We have considered Jefferson's testimo- ny, but conclude based on the other factors here that Jefferson was and continued to be a member of the Respondent until she resigned during the strike. son's Local 4310 membership automatically trans- ferred to Respondent Local 4354. Finally, Jefferson honored the Respondent's picket line until she wrote the Respondent that, "As of Monday, June 23, 1986, I am officially resigning from the Union, Local 4354, CWA." Jefferson placed this letter in the mail on June 24 and the Respondent received it on June 25. We agree that these facts demonstrate that Jef- ferson was a member of the Respondent on June 23 and 24. In addition, we find further record evi- dence to support this conclusion. Thus, although the judge found that Jefferson joined Local 4310 in 1973, the record demonstrates that, under CWA procedures, applicants for union membership sign cards with and join the CWA. The CWA, which receives all membership dues, determines the local having jurisdiction over the applicant, affixes a local sticker to the membership card and remits a portion of the dues to the designated local. When disputes arise between CWA locals, the CWA con- stitution provides for resolution by the CWA exec- utive board or convention. Once the dispute is re- solved, according to the credited testimony of the Respondent's president, "the Local with that juris- diction will have the members at that location." Therefore, by signing a membership card in 1973, Jefferson joined the CWA and bound herself to its rules. Although the CWA initially placed Jef- ferson and other Ohio Bell employees in Local 4310, Jefferson subsequently transferred to Wor- thington where Respondent Local 4354 had been granted jurisdiction. Indeed, when Local 4310 challenged the Respondent's jurisdiction, Jefferson supported the Respondent. And, once the CWA awarded jurisdiction to the Respondent, Jefferson and all Worthington members became members of the Respondent. Under all these facts, we agree with the judge that Jefferson was a member of the Respondent on June 23 and 24. However, we reject the judge's al- ternative finding that the Respondent's internal charges against Jefferson would not violate the Act even were Jefferson not a member. We have held that a union's initiation of disciplinary proceedings against nonmembers, or the threat of such disci- pline, violates Section 8(b)(1)(A). See, e.g., Electri- cal Workers Local 213 IBEW (Rucker Electric), 217 NLRB 46 (1975); Mylen Iron & Aluminum Works, 216 NLRB 865, 870 (1975). ORDER The complaint is dismissed. Wyrone A. Cravanas, Esq., for the General Counsel. 289 NLRB No. 148 1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Jerry L. Riseling, Esq. and Paul L. Thompson, Esq., of Columbus, Ohio, for the Respondent. Glenn M. Taubman, Esq., of Springfield, Virginia, for the Charging Parties. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. These consolidated cases were heard in Columbus, Ohio, on 23 and 24 April 1987. Subsequently, briefs were filed by all the parties. The proceedings are based on charges filed 20 and 29 October 1986,' respectively, by individ- uals Julia A. Jefferson and Windy K. Holliman. The Re- gional Director's consolidated complaint dated 10 De- cember alleges that Communications Workers of Amer- ica Local 4354, AFL-CIO (Respondent or Local 4354) violated Section 8(b)(1)(A) of the Act by bringing in- traunion disciplinary charges against Jefferson and Holli- man. On a review of the entire record in this case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT 1. JURISDICTION The Charging Parties are employees of American Telephone and Telegraph Company, a Delaware corpo- ration with a place of business in Worthington, Ohio, en- gaged in furnishing interstate telephone communications. At all times material it has been an employer engaged in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It is admitted that the Respondent is a labor organization within the mean- ing of Section 2(5) of the Act and that it has a collective- bargaining agreement with the Employer. Accordingly, I find that inasmuch as the allegations of each complaint charge interference with the statutory rights of an indi- vidual, I find that it effectuates the policy of the Act to exercise jurisdiction, see Iron Workers Local 577 (Various Employers), 199 NLRB 37 (1972). II. THE ALLEGED UNFAIR LABOR PRACTICE Following the resolution of a jurisdictional dispute in January 1986, Respondent was determined to be the col- lective-bargaining representative of the American Tele- phone and Telegraph employees at the Employer's Worthington facility, where both Jefferson and Holliman are employed. Respondent Local 4354 had jurisdiction at the Wor- thington location before 1984, however, another local contested its jurisdiction after various changes were made as a result of the court-ordered divestiture of the Employer. It was determined that a vote would be con- ducted in order to allow members to make their own de- termination. Julia Jefferson began working for the Employer's predecessor, Ohio Bell Telephone Company, in October ' All following dates will be in 1986 unless otherwise indicated. 1973. Ohio Bell employees were then represented by Local 4310 of the Union and Jefferson signed a member- ship card and dues-checkoff authorization card shortly after beginning her employment. In September 1983, after the divestiture, Jefferson was assigned to the AT&T Worthington facility where she continued her employ- ment as a sales representative. During the course of the jurisdictional dispute, Jefferson signed a petition on 27 March 1984 expressing her desire to have Local 4354 as her representative. Local 4354 won the election and was designated as the local affiliate for the Worthington location by the execu- tive board of the International Union. In accordance with union practices, all members thereafter automatical- ly came under the jurisdiction of Local 4354. Jefferson's union dues continued to be withheld by the Employer al- though she never signed another dues-checkoff authori- zation card. She testified that she was requested to sign a new card in early 1986 by Linda Morrison (Local 4354's treasurer), but told her that she "would think about it" and gave the same response to a request by another indi- vidual who was a union steward. This occurred at a time when the International Union was negotiating a new na- tional contract and when the union local had sent all em- ployees a memo that stated: "only members, which are those who have signed membership cards on file, have the right to direct the union and to vote in any elec- tion-and strike vote elections." On 31 May the contract between the Employer and Respondent expired and Re- spondent began a strike at the Employer's facilities, in- cluding its Worthington location. Jefferson did not cross the picket line until 23 June when she returned to work. The strike ended on 26 June and a new collective-bar- gaining agreement subsequently was signed. Windy Holliman is a communications technician who started work for Ohio Bell in 1970. She became an AT&T employee in January 1984 at its Dayton, Ohio office and signed a membership and dues-checkoff au- thorization with Local 4354 at that time. In May 1986, she transferred to the Worthington facility, however, she asserts that in December 1985 she became "disgusted" with the Union and mailed a certified letter to Respond- ent containing her resignation from the Union. She testi- fied that in a general conversation in the lunchroom she stated she "would not be honoring the strike and I was not a member of the local" (although she asserts that Steward Lawanda Martin was present on that occasion, she also stated that at that time she did not know that Martin was a union steward). Despite her alleged statement, Holliman in fact did honor the picket line for about a week, asserting that it was "not so much because of the strike, but because I was moving from Dayton to Columbus." On 9 June, she crossed the picket line and returned to work. As noted above, the Union began a lawful economic strike on 1 June in an effort to obtain a more favorable contract. All negotiations were done at the national level. Inasmuch as the collective-bargaining agreements governing the conduct of the parties in this case con- tained an agency-shop provision, the local union re- viewed its membership list in preparation for the strike COMMUNICATIONS WORKERS LOCAL 4354 (AMERICAN TELEPHONE) and it set up a procedure for the possible discipline of members who crossed the strike line. In May 1986, Steward Judy May prepared a list of nonmember employees by obtaining a complete list of all persons working at the Worthington facility and checked the list against membership cards on file at the union hall. Those persons without a membership card were re- corded on a list designated nonmembers as of 6 June 1986. Several names had a notation "resigned" subse- quently written after them. Neither Jefferson nor Holli- man's names were on this union list of nonmembers. After the strike was underway, May prepared a list of members who had crossed the picket line. This list con- tained 25 names and notations that indicated if they were nonmembers or had resigned and the date of the resigna- tion. Holliman was identified as having crossed from 9 June on, and as a "member no resignation." Jefferson was recorded as crossing on 23 and 24 June and as "member resignation in office 25 June 1986." May testi- fied that she also checked membership cards, including Jeffersons, when she prepared this list. She also said that before the strike the cards were kept in locked files, however, during the strike the cards frequently were re- ferred to and were often left out. Subsequently Respond- ent discovered that Jefferson's membership card was missing. Kent Cales, the president of the local, testified that he observed membership cards signed by both Jef- ferson and Holliman during the latter part of June when he was reviewing records after he had been informed that they had crossed the picket line. After the strike was underway, charges in the form of affidavits were prepared by the union members detailing which individuals, including Jefferson and Holliman, had crossed the picket line. As noted, Steward May then checked the card file to determine if these individuals were members and if a resignation had been received. In accordance with internal union practices, James Coles was appointed as "prosecutor" with duty to inves- tigate the charges, see if the complaints had merit, and recommend action to the membership . He found that some charges were meritorious and that some others were not. He then instructed the Union that individuals would not be prosecuted if they were not members, or were members and had resigned , and that, for the indi- viduals resigning, they would only be prosecuted for crossing the picket line before receipt of the resignation. Based on his investigation and all the information he received, he determined that Jefferson, Holliman, and 10 other individuals should be charged under the constitu- tion and bylaws of the Union . Once the determination was made to try an individual, the worker was notified of the charges, a trial date was established, and the indi- vidual was advised of his or her rights under the consti- tution and bylaws to be present, and to present testimony and witnesses in their defense . The 10 other people charged were tried by the Union in the fall of 1986, however, because both Jefferson and Holliman filed charges with the National Labor Relations Board before their trial dates, their cases were indefinitely postponed by the Union pending the resolution of this Board pro- ceeding. III. DISCUSSION 1175 Under the provisions of the Act, a union has the right to regulate its own internal affairs including the right to discipline members who violate union rules that are rea- sonably consistent with the basic legislative purpose of the Act, NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967), and Scofield v. NLRB, 394 U.S. 423 (1969). See also Electrical Workers IBEW Local 453, 263 NLRB 862 (1982). Here, the General Counsel contends that the Union's attempt to enforce its rules by the mere filing of intraun- ion disciplinary charges against Jefferson and Holliman was improper because it is asserted that neither was a member of the Union at the time they were alleged to have violated the Union's rules. Section 8(bxl)(A), which is claimed to have been vio- lated here, provides, that: (b) It shall be an unfair labor practice for a labor organization or its agent-(1) to restrain or coerce (A) employees in the exercise of the rights guaran- teed in section 7 . . . provided, That this paragraph shall not impair the right of a labor organization to prescribe its own rules with respect to the acquisition or retention of membership therein. [Emphasis added] It is well established that in furtherance of this right, any union discipline of members must relate to properly adopted rules which reflect a legitimate union interest, must impair no policy Congress has imbedded in the labor laws, and must be reasonably enforced, see Sco- field, supra. Here, there is no claim nor showing of proof that re- lates to any of the Scofield criteria, except the reasonable- ness of the Union's attempt to enforce its rules. The attack on the Union's enforcement effort otherwise begs the question and directs itself at the employees' potential defense to the charges, namely the assertion that each was not a member at the time she engaged in conduct in violation of the union rules. First, the record shows that both Jefferson and Holli- man had been union members and continued to be re- corded on the Union's records as members. Because of a jurisdictional dispute between locals of the Union that arose out of the court-ordered reorganization of the Em- ployer, and because of its preparation for an anticipated strike, the Union made extensive reviews of its member- ship list. Both Jefferson and Holliman were recorded as members. Subsequently, after the strike began, after charges were filed against a number of individuals who crossed the lawful picket line, and after the Union fol- lowed elaborate internal procedures to review the validi- ty of the changes and each person's membership status (paying specific attention to any receipt of a resignation of membership), about 10 or more persons were formally referred to trial. There is no showing that the Union was made aware that either of the Charging Parties asserted her innocence to the union charges because of any change in their membership status at any time before their filing of the charges with the Labor Board. 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The Charging Parties were not treated any differently than about 10 other persons who were charged with rules violations and scheduled for trial. They were given an opportunity to appear and present an appropriate de- fense in an internal trial procedure; however, they in- stead choose to file their own charges against the Union alleging an unfair labor practice. There is no showing that the Union's filing of internal charges was motivated by anything other than a desire to maintain union disci- pline validly related to rules pertaining to retention of membership. There is no showing that the Union knew or should have known that Jefferson and Holliman claimed nonmembership status by virtue of resignation (or any other reason) or that the Union otherwise acted unreasonably in pursuing the charges . The Union under- took a detailed investigation and had valid reasons to be- lieve that Jefferson and Holliman were still members at the time each crossed the picket line and at the time it attempted to pursue charges against them. Here, I find that the mere existence of the possibility that a person charged could show a proper defense to the Union's alle- gations during the trial on such charges does not act to invalidate the reasonableness of the Union's rule enforce- ment effort. Accordingly, I conclude that the General Counsel has failed to substantiate his contentions that the Respondent has violated Section 8(b)(1)(A) of the Act and, accordingly, I recommend dismissal of the com- plaint. I find that it is unnecessary to determine the truthful- ness of the Charging Parties' assertions that they were not union members when they crossed the picket line to reach the conclusion that the General Counsel has failed to show a violation of the Act. However' I otherwise find that the record also fails to support a factual conclu- sion that the Charging Parties in fact did submit valid resignations from membership or otherwise took such ac- tions or nonactions that effectively changed their status to that of nonmembers. Jefferson's claim to nonmembership status is based on the fact that she initially signed a membership card with Local 4310 and never executed a card with Local 4354, although she was requested to do so subsequent to the resolution of the jurisdictional dispute in Local 4354's favor and before the strike in May 1986. During all this period, union dues continued to be deducted from her pay and she took no affirmative steps to specifically resign her membership from Local 4310 or the Interna- tional or to otherwise check on her status. To the contrary, she signed a petition 27 March 1984 in favor of Local 4354 and she participated in the juris- dictional vote. To so participate, it was necessary for her to be a member of the Communications Workers. Jeffer- son also honored the picket line from 1 June until 23 June. On that day she prepared a letter of resignation, which she mailed the next day to both Local 4310, Local 4354, and the International. Local 4354 received it on the 25th and it accordingly limited its charge against her to alleged rule violation only for the 2 days she worked before the Union's receipt of the resignation. The General Counsel points out some actions that Jef- ferson did not take, such as allegedly not signing a new card for Local 4354 and not attending union meetings, as being indicative of nonmembership. Proof of negative in- dications, however, falls far short of being proof of an unequivocal separation from membership status. The General Counsel also seeks to draw some inference that Jefferson was not a member because the Union acknowl- edged that they could not locate her membership card. Two union officials, however, credibly testified that they saw and utilized her card during the course of preparing for the strike and the filing of charges and this testimony is corroborated by union records prepared as a result of these examinations. Although it seems probable that the card would have reflected her original membership in Local 4310, rather than a specific joining of Local 4354, I otherwise accept Respondent's position that the em- ployees' membership automatically transferred to the properly authorized local when the question of jurisdic- tion was resolved by the noted election. Jefferson admittedly signed a card with Local 4310 and I find that the current existence of the card is irreve- lant to the question of Jefferson's membership status. I also conclude that it is not implausible that the card was mislaid during the unusual activities surrounding the strike. Jefferson professed to be unaware of Local 4354 union matters, however, she understood that her work location was under the jurisdiction of Local 4354 and she otherwise is shown to be an informed individual capable of fulfilling the responsible duties of a sales representa- tive for the Employer telephone company. She made no inquiries about her status after the resolution of the juris- dictional dispute or when the Union went on strike. After she returned to work, she promptly prepared and mailed a resignation to both Local Unions, as well as the International. Under these circumstances, I find that it was her responsibility to take affirmative and unequivo- cal action to obtain nonmembership status. Here, it is not shown that she took one affirmative step that could be interpreted as conveying to the Union that she was re- signing her membership. Accordingly, I find that Julia Jefferson was a member of the Union on 23 and 24 June, the dates relevant to the union charge against her, and that she did not change, nor convey to the Union her intentions to change, her membership status until 25 June. Therefore, the Union acted properly and reasonably by considering her to be a member on those days she crossed the picket line before the receipt of her resignation from membership. Holliman's claim to nonmembership status is based on her allegation that she became "disgusted" and resigned from the Union in December 1985. The Union asserts that no such resignation was ever received. Holliman, who also is shown to be an informed indi- vidual that holds a responsible position as a communica- tions technician, testified that she typed a letter of resig- nation at work in Dayton, and drove to Columbus, Ohio, where she maintained a post office box and mailed the letter from the main post office. In support of her testi- mony, she presented a sales receipt for certified mail that bears a stamp impression indicating that a letter was mailed on 9 December 1985. She testified that she waited in line because of heavy traffic, told the postal clerk she wanted to mail the letter, COMMUNICATIONS WORKERS LOCAL 4354 (AMERICAN TELEPHONE) 1177 paid him, and he stamped a receipt . He returned the top portion of it to her and she filled out the union name and address, and left. She asserts that she did not read the re- ceipt, nor did the clerk ask her if she wanted a return receipt. When Respondent began preparations for this proceed- ing, it observed that the stamp impression contained on Holliman's receipt was identical to that of two other in- dividuals who allegedly sent resignations that also had not been received by the Union . In all three cases, the receipt for certified mail was stamped Columbus, Ohio M.O.C.U. with a date. Suspicions were further raised when one of the receipts was stamped on 21 April 1985, which was a Sunday. Respondent requested the post office to conduct an in- vestigation. This investigation resulted in a letter dated 4 February 1987, to the General Counsel's office and to counsel for Local 4354. The letter states that the main post office in Columbus, after searching its files, found there was no record of delivery or receipt for certified receipt, P 041 658 872 (the letter allegedly mailed by Holliman) or for one of the other receipts (P 050 010 474, dated 18 March 1985). The letter was prepared by Ruth Thompson, an employee of the consumer affairs section of the post office, who also testified that the stamp with the letters, M.O.C.U. (for Main Office Carri- er Unit), is not available to the window clerks where Holliman claims to have mailed her letter and could not have been used by mistake at the window. George Calhoun, a claims and inquiry clerk for the post office, researched Holliman's receipt . He found no record of delivery or return on this receipt . He indicated that he and another person conducted the search order to cross check each other and still no record could be found. Although they do lose a couple of receipts a day, there are 4000 to 6000 other receipts that are properly accounted for. Charles Boren, the area manager for the postal service, testified that the M.O.C.U. stamp is only found in the main office carrier unit, which is located at least 100 yards from the window unit. The carrier unit is in the extreme rear of the building and the window unit is at the extreme front. The carrier unit is not accessible to the general public and the M.O.C.U. stamp is never available to the counter unit . Boren further testified that temporary employees are never used at the window unit and, further, window unit employees are trained to ask customers whether they want a return receipt. At the suggestion of the court, Boren made an attempt to review when receipts in numerical sequence with Holli- man's receipt were used but reported back that he had no record of where such information might be kept. It also was established that Holliman is well acquaint- ed with a number of employees at the Columbus post office that are letter carriers, including her former hus- band, who is a clerk (but not a window clerk) and that a postal investigator interviewed her about this matter. To her knowledge, no charges against any postal employees were brought as a result of the investigation. The General Counsel argues that where there is no evidence of actual delivery as here, it is presumed that membership resignations are received the day after mail- ing, citing Electrical Workers IBEW Local 340 (Hulse Electric), 273 NLRB 428 (1984). In the instant case, however, the Respondent has per- suasively shown the existence of irregular circumstances surrounding the purported mailing of the resignation letter. These circumstances include the fact: (1) that Re- spondent has no record of having received it, yet freely admits and has records of receiving a large number of other resignations; (2) that Holliman's testimony regard- ing the way in which she mailed and obtained a "re- ceipt" (but not a return receipt) of mailing is directly at odds with the probative testimony of post office officials regarding the procedures and use of the involved "re- ceipt" stamp; (3) that Holliman engaged in conduct in- consistent with her expressed "disgust" with the Union by failing to request a return receipt or otherwise seeking any confirmation of her membership status and then ob- serving the picket line for approximately a week; and (4) that Holliman had the opportunity through her acquaint- anceship with post office employees who has unique access to the receipt stamp used on her inappropriately stamped receipt slip. I find that post office officials have persuasively shown that in the ordinary course of business Holliman could not have obtained a sales receipt bearing the stamp impression appearing on her asserted proof of mailing. The indication that postal investigators apparently did not find sufficient evidence to support any further action is immaterial to proof of the validity of Holliman's mail receipt stamped 9 December 1985. I conclude that the receipt stamped 9 December 1985 is not valid and is not entitled to any affirmative weight as proof of the mailing of a membership resignation. I therefore find that the Respondent has shown that no presumption of mailing (and receipt) of Holliman's pur- ported resignation from membership is warranted . Other- wise, the General Counsel has failed to show that the questioned receipt should be considered to be valid. I further fmd that Holliman's testimony that she mailed a letter of resignation stands uncorroborated and, in view of all the circumstances, including the suspicion of possible fabrication, her testimony is not entitled to credible weight that could affirmatively establish that she resigned from membership prior to the date she crossed the picket line. Accordingly, the Union acted properly and reasonably by considering her to be a member at the time she violated union rules. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act and it has a collective-bar- gaining agreement with an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdiction. 2. Respondent did not engage in an unfair labor prac- tice in violation of Section 8(b)(1)(A) of the Act by charging Julia A. Jefferson and Windy K. Holliman with a violation of internal union rules and notifying them that a trial court concerning those charges would be conducted on 6 November 1986. 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and ORDER on the entire record, I issue the following recommend- ed2 It is recommended that the complaint be dismissed in its entirety. 2 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Board and all objections to them shall be deemed waived for all pur- Order shall, as provided in Sec 102.48 of the Rules, be adopted by the poses.