Communications Workers Of America, 11500, Afl-Cio (American Telephone & Telegraph Co.)

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Communications Workers of America, Local 11500, AFL-CIO (American Telephone & Telegraph Company) and Ins W DiMercuno Case 21- CA-8773 19 October 1984 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND DENNIS On 17 July 1984 Administrative Law Judge Richard J Boyce issued the attached decision The Respondent filed exceptions 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 brief and has decided to affirm the judge's rulings findings 1 and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Commumca tons Workers of America, Local 11500, AFL- CIO, Norwalk, California, its officers, agents, and representatives shall take the action set forth in the Order ' The Respondent has excepted to some of the judge s credibility find lags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are Incorrect Standard 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 reversing the findings DECISION STATEMENT OF THE CASE RICHARD J BOYCE Administrative Law Judge This matter was tried in San Diego California on May 31 1984 The charge was filed March 24 1984 by Iris W DiMercuno (DiMercurio) The complaint issued April 18 and alleges that Communications Workers of Amer Ica Local 11500 AFL-CIO (Respondent) violated Sec tion 8(b)(1)(A) of the National labor Relations Act (Act) on February 21 1984 by imposing a fine against DiMer curio for working behind a picket line after she had re signed from membership in Respondent I JURISDICTION The involved employer is Amencan Telephone & Telegraph Company (AT&T) It is undisputed that AT&T is an employer engaged in and affecting com merce within Section 2(2) (6) and (7) of the Act II LABOR ORGANIZATION Respondent is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED MISCONDUCT A Evidence DiMercuno a telephone operator at AT&T s facility at 5690 Balboa Arms Drive in San Diego is in a bargain ing unit of employees represented by Respondent On August 7 1983 Respondent called a strike of unit employees in aid of its position in the negotiation of a new contract with AT&T The stnke lasted until August 27 DiMercuno joined in the strike at its inception even walking the picket line On August 11 or 12 however she returned to her job which entailed crossing and working behind the picket line On October 17 DiMercuno received this notice from Respondent You Ins W DiMercuno were observed crossing a picket line at 5690 Balboa Arms Drive in the City of San Diego in the County of San Diego in the State of California on August 12 13 15 thru 17 19 21 thru 23 26 1983 You are charged with violating Article XIX Section 1 of the CWA Constitution which reads as follows Members may be fined suspended or expelled by Locals in the manner provided in the Consti tution for any of the following Acts (E) Working without proper Union authonza tion during the period of a properly approved strike in or for an establishment which is being struck by the Union or Local The charge was properly filed with the Recording Officer of the Local at an Executive Board meeting held on October 04 1983 at the Local office You will be notified of the date and location of your trial That was followed by notice from Respondent to Di Mercurio mailed January 20 1984 that her trial would be held at noon February 21 in Respondent s office at 4990 Williams Avenue in the San Diego suburb of La Mesa DiMercuno did not appear for the trial nor did she otherwise answer to the charge On February 21 Re spondent mailed this notice to her It is the decision of the Trial Court that you are guilty of the charges brought against you The Trial Court therefore has determined the fol lowing penalty You shall be suspended from membership in the Union until not applicable You shall be fined in the amount of all wages earned from August 7 through August 27 1983 plus $100 00 penalty and for any strike benefits re ceived 272 NLRB No 130 COMMUNICATIONS WORKERS LOCAL 11500 (AMERICAN TELEPHONE) 851 Wages $ 2,617 75 Penalty 100.00 Strike Benefits -0- Total $ 2,717.75 The amount shown as wages is an estimated amount. If the amount is different than your actual earnings you may send a copy of your check stubs to the Constitution and By-Laws Enforcement Committee at the Local so an adjustment can be made. You have the right to appeal the verdict of the Trial Court to the Executive Board of the Local within thirty (30) days of this letter. The Appeal must be made by you and be submitted in writing to Frances Valencia, Secretary-Treasurer of the Local DiMercurio did not appeal the verdict and, to the trial herein, had not paid the fine DiMercurio testified that the preceding July 29—i e., about a week before the strike began—she mailed this letter to Respondent at the 4990 Williams Avenue ad- dress: To Whom It May Concern: I, Iris W. DiMercurio, do on this 29th day of July, 1983, here and now resign from the C.W.A. Union and Local #11500. Please bring this to the attention of said Local President Marge Terflinger. /s/ Iris W. DiMercurio The letter was sent by ordinary mail, according to Di- Mercurio, during the course of an evening of shopping with two AT&T coworkers, Mildred Miller and Roberta Rostiker Miller and Rostiker corroborated DiMercurio that they were with her that evening, and that she mailed a letter Neither purported to know what the letter concerned, however, or to whom it was sent 1 Lois (Marty) Church, in charge of Respondent's office at 4990 Williams Avenue, testified that she opened all mail coming to the office until the strike started, and that she never saw the letter assertedly sent by DiMercuno on July 29, nor a copy of it, before the present tnal.2 On August 21, by all accounts, DiMercurio sent this letter, by certified mail, to Respondent. Attn: Margi Tefflinger [sic] To whom it may concern: Having been misinformed by a Union representa- tive as to the proper procedure to resign from this Union local, prior to the strike, I was unable to tender my resignation before the said strike Now with the proper information at hand I for- mally resign from the Union, local 11500 ' DiMercurio, in her testimony, did not profess to have disclosed these details to Miller and Rostiker 2 A copy of the letter, supplied by DiMercurio, is in evidence The office, Church testified, is open Mondays and Fridays only (except during the strike) Mail coming other days is delivered through a slot in the door, lying on the floor until the next succeeding Friday or Monday /s/ Ins W. DiMercurio DiMercurio testified that a number of letters identical to this had been handwritten by someone other than Di- Mercurio, "so that anybody in the office that wanted to resign could resign"; and that she affixed her signature to one and had a friend mail it. She testified that she sub- mitted a second letter because she had been told, since mailing her July 29 letter, that resignation letters had to be sent by certified mail to be valid, and because she had received no acknowledgement from Respondent of the earlier one. It is undisputed that, had Respondent received the letter assertedly sent on July 29, DiMercuno's resigna- tion would have been valid as of that time B. Conclusions Facts. It is found that DiMercuno in fact did mail the letter purportedly sent July 29. Her testimonial demeanor was particularly impressive. Moreover, while a literal reading of her August 21 letter would belie the prior submission of a resignation, her testimony about the cir- cumstances surrounding that letter was at once plausible and convincing, effectively disposing of the seeming con- tradiction. And, that DiMercuno chose to participate in the strike for a few days before returning to work is not inherently at odds with a prior resignation It is further found, applying the legal presumption that attends the placement of a missive with the United States Postal Service, that the July 29 letter was received by Respondent in the ordinary course of mail—which is to say, well before DiMercuno first crossed the picket line nearly 2 weeks later. 3 Church's testimony that she never saw the letter, or a copy of it, before the trial lacked conviction, and thus did not overcome the presumption. Law. DiMercurio's July 29 letter having been received by Respondent before she engaged in the conduct for which she was fined, it being conceded that the letter was sufficient to effect resignation if received, Respond- ent perforce violated Section 8(b)(1)(A) as alleged. Ma- chinists Local 1414 (Neufeld Porsche-Audi), 270 NLRB 1330 (1984) CONCLUSION OF LAW By imposing a fine against Ins W. DiMercuno on Feb- ruary 21, 1984, for returning to work during a strike, after she had resigned from membership in Respondent, Respondent violated Section 8(b)(1)(A) of the Act. On these findings of fact and conclusion of law, I issue the following recommended4 3 A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail Cal Evidence Code Sec 641 (West 1968) See also Mark I Tune-Up Centers, 256 NLRB 898, 909 (1981), Hendricks-Miller Typographic Go, 240 NLRB 1082, 1088 (1979), Thiele Tanning Go, 128 NLRB 19, 20 fn 3 (1960) 4 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 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Respondent Communications Workers of Amer ica Local 11500 AFL-CIO its officers agents and rep resentatives shall 1 Cease and desist from (a) Restraining or coercing employees in their exercise of rights under Section 7 of the Act by imposing fines against them for working for a struck employer after they have resigned from membership in Respondent (b) In any like or related manner restraining or coerc mg employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take this affirmative action to effectuate the policies of the Act (a) Rescind the fine imposed against Iris W DiMer curio on February 21 1984 because of her postresigna lion work for AT&T during the strike that began on August 7 1983 refund to her any moneys she may have paid as a result of such fine with interest 5 and expunge from its records any and all references to said fine and to the charges underlying it notifying DiMercurio in writ ing that this has been done (b) Post at its business office and meeting halls copies of the attached notice marked Appendix 6 Copies of the notice on forms provided by the Regional Director for Region 21 after being signed by Respondent s au thonzed representative shall be posted by Respondent immediately upon receipt and maintained for 60 consecu live days in conspicuous places including all places where notices to members are customarily posted Rea sonable steps shall be taken by Respondent to ensure that 5 Interest shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 6 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 the notices are not altered defaced or covered by any other material (c) Sign and return to the Regional Director sufficient copies of the notice for posting by American Telephone & Telegraph Company if willing at all places where no tices to employees in the affected bargaining unit cus tomanly are posted (d) Notify the Regional Director in wnting within 20 days from the date of this Order what steps Respondent has taken to comply APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees in their exercise of rights guaranteed by Section 7 of the Act by imposing fines against them for working for a struck em ployer after they have resigned from membership in our Union WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL rescind the fine imposed against Iris W Di Mercurio on February 21 1984 because of her postresig nation work for AT&T during the strike that began on August 7 1984 WE WILL refund to her any moneys she may have paid as a result of such fine with interest and WE WILL expunge from our records any and all refer ences to said fine and to the charges underlying it noti fying DiMercuno in writing that this has been done COMMUNICATIONS WORKERS OF AMERICA LOCAL 11500 AFL-CIO