American Telephone & Telegraph Co.

National Labor Relations Board - Board Decisions

Jun 20, 1974

211 N.L.R.B. 782 (N.L.R.B. 1974)

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Telephone & Telegraph Co. and Anne
Walden . Case 2-CA-13094
H. occasions , and claimed that Beckett and his superior,
June 20, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On March 26, 1974, Administrative Law Judge
Eugene E. Dixon issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed a statement in support of the Administra-
tive Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
but only to the extent consistent with the following.
On September 17, 1973, the Respondent issued
Anne H. Walden, the charging party, a warning of
possible "very severe disciplinary action" because of
the manner in which she conducted herself on that
date while engaged in certain union activity. The
complaint alleges in essence that as the warning was
given because of Walden's union activities it violated
Section 8(a)(1) of the Act. The Administrative Law
Judge concluded, however, that Walden was not
engaged in a union matter such as contract negotia-
tions or grievance settlement but only in a "peripher-
al procedural matter totally devoid of substance"
and could see no reason for what he considered to be
her improper conduct. Accordingly, he found that
Respondent had not violated the Act. We agree with
the General Counsel that the Administrative Law
Judge erred in his consideration of the case.
The facts are simple enough. Walden in her
capacity as a union agent requested certain informa-
tion relevant to a change in the Respondent's
organization or operations which would affect the
employment situation of a number of employees. On
Friday, September 14, 1973, she received from W.R.
Beckett , a district operations manager, a slip of paper
containing some data, which, however, she consid-
ered wholly inadequate in terms of what she had
requested. The following Monday morning she went
to Beckett 's office to complain about the matter.
According to the credited testimony, Walden, in an
increasingly louder voice, referred to the information
sent her as garbage, stated that the type of informa-
tion she wanted had been given her on other
Nichols, should be able to interpret her requests.
Then in response to Beckett's statement that the
information supplied was that asked for, she shouted
she was not there to play games and finally-and still
shouting-she made some comment concerning
Beckett's lack of intelligence. At several points
Beckett interjected to warn Walden that the meeting
would end if she did not improve her tone and
manner and with her comment concerning his lack of
intelligence Beckett stated the meeting was ended.
Walden left. The whole meeting had lasted only 3 to
5 minutes.
That afternoon Beckett called Walden to Manager
Nichols' office where he first told her he was
speaking to her in her capacity as an operator, i.e., as
an employee, and then gave her a warning for her
earlier "abusive and extremely loud" behavior in his
office, which, he stated, would not be tolerated and
which if repeated would subject her "to very severe
disciplinary action." He added the warning would be
noted in her personnel file and, according to his
testimony, did place in her file a summary statement
of the warning and of her reactions to receiving it.
It is clear from the facts outlined above that at the
morning meeting with Beckett on September 17
Walden was acting solely in her capacity as a union
representative. Indeed, as Beckett was not her
supervisor, she had no reason to deal with him except
in her capacity as a union agent. It is also clear that
at the time she was acting in furtherance of a
legitimate union objective-the acquiring of what she
deemed relevant job data. In view of the foregoing
we find unwarranted the Administrative Law Judge's
conclusion that Walden was engaged only in a
"peripheral procedural matter totally devoid of
substance" with the implication that her activity was
somehow not entitled to the full protection of the
Act. Neither do we find any substance in Respon-
dent's argument to the effect that Walden was not
engaged in a "legitimate or relevant request concern-
ing clarification" of data previously given her
because she did not in so many words specifically ask
for such clarification. The Respondent introduced
considerable evidence for the purpose, apparently, of
showing that Walden had already been given the
information she was complaining she had not
received. It is nevertheless plain that Walden was in
good faith complaining about the insufficiency of the
data supplied her, and that she was attempting to
secure what she regarded as fuller and more
complete data.
Despite his somewhat contrary testimony Beckett
obviously realized at the meeting that he was faced
with a request for clarification or for additional
information, and was resisting the claim of inadequa-
211 NLRB No. 115
AMERICAN TELEPHONE & TELEGRAPH CO.
cy. His questioning Walden concerning what was
wrong with the information supplied and his claim at
the time that it met with the request is susceptible of
no other reasonable interpretation. We are not here
called upon to determine the merits of either party's
views into the adequacy or inadequacy of the
information in issue. We do, however, find that
throughout the morning meeting Walden was acting
as a union agent in pursuit of what she regarded as a
need for further data. That, of course, was a
legitimate union objective and she was thereby
engaging in protected concerted activity.
The next issue before us then is whether, as the
Administrative Law Judge appears to have found,
Walden's shouting and her critical comments con-
cerning Beckett were separate and apart from her
presentation of her complaint concerning the inade-
quacy of the information supplied. On the contrary,
that conduct was the very means-albeit, we agree, a
rude one-by which she presented her complaint and
thus was a part of the res gestae of the protected
activity.
Finally, the question remains as to whether
Walden's conduct was so flagrant or so opprobrious
as to place it beyond the protection of the Act. We
find it was not, for, it really involved only Walden's
talking at a shout and making some unkind com-
ments concerning Beckett's intelligence.' Obviously
Beckett found Walden's behavior unpleasant and
uncalled for and his refusing to tolerate it by
terminating the meeting only minutes after it began
is not being challenged here. However, we have long
recognized that the disagreements which arise in the
collective-bargaining setting sometimes tend to pro-
voke commentary which may be less than mannerly,
and that the use of strong language in the course of
protected activities supplies no legal justification for
disciplining or threatening to discipline an employee
acting in a representative capacity, except in the most
flagrant or egregious of cases. While, therefore,
Walden's conduct here was less than genteel, we find
in view of all the foregoing that her conduct was not
so opprobrious as to be unprotected and that by
threatening her with severe discipline as described
above Respondent violated Section 8(a)(1) of the
Act.2
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
I The Respondent claims that Walden also refused to obey repeated
orders of Beckett to change her manner . Such refusal would not necessarily
require a different result here , but as a matter of fact it did not occur.
Beckett did no more than warn Walden he would end the meeting if she did
not change her manner . Also, contrary to the Respondent 's claim, there is
no evidence that Walden 's conduct caused any substantial disturbance of its
783
8(a)(1) of the Act, we shall order it to cease and
desist therefrom and take certain affirmative action
in order to effectuate the policies of the Act.
Also as it appears that the Respondent placed in
Walden's personnel file a written version of the
unlawful warning of possible severe discipline, we
shall order Respondent to expunge from that file and
all other records any copy of that unlawful warning
or any reference to that warning.
In view of all the foregoing, we make the following:
CONCLUSIONS OF LAW
1. American Telephone & Telegraph Co. is an
employer engaged in commerce in a business
affecting commerce within the meaning of Section
2(6) and (7) of the Act.
2. Local 1150, Communication Workers of Amer-
ica, is a labor organization within the meaning of
Section 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act
by threatening Anne H. Walden with disciplinary
action because of her manner of engaging in
protected concerted activities in her capacity as a
representative of the Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
American Telephone & Telegraph Co., New York,
New York, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with severe discipline
because they engage in protected concerted activities
for the purpose of collective bargaining or other
mutual aid or protection.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights protected by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the Act:
(a) Expunge from Anne H. Walden's personnel file
and from all other of its records all copies of, or
references to, the unlawful warning issued to her on
September 17, 1973.
(b) Post at its place of business at 32 Avenue of the
operations . At most her loud talk distracted 10 persons for a couple of
minutes and, as one of them testified , she stopped work momentarily
because she wanted to overhear what was being said.
2 See, for example , Houston Shell and Concrete Co., a Division of
McDonough Co., 193 NLRB 1123; Crown Central Petroleum Corporation,
177 NLRB 322, enfd . 430 F.2d 724 (C.A. 5).
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Americas, New York, New York, copies of the
attached notice marked "Appendix."3 Copies of said
notice , on forms provided by the Regional Director
for Region 2, after being duly signed by Respon-
dent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 2, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
3 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
WE WILL NOT threaten our employees who are
union agents with severe discipline because they
engage in protected concerted activities for the
purpose of collective bargaining or other mutual
aid or protection.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights protected by Section
7 of the National Labor Relations Act.
WE WILL expunge from Anne H. Walden's
personnel file and from all other of our records all
copies of, or references to, the unlawful warning
issued to her on September 17, 1973.
AMERICAN TELEPHONE &
TELEGRAPH CO.
(Employer)
Board's Office, 36th Floor, Federal Building, 26
Federal Plaza, New York, New York 10007, Tele-
phone 212-264-0306.
DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Administrative Law Judge: This
proceeding, brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136), herein
called the Act, was heard at New York City on December
13, 1973. The complaint, dated October 30, 1973, based
upon charges filed and served September 25 and October
19, 1973, by Anne H. Walden , was issued by the Regional
Director for Region 2 (New York, N.Y.), on behalf of the
General Counsel of the National Labor Relations Board,
herein called the General Counsel and the Board. The
complaint alleged that Respondent, American Telephone
and Telegraph Company, had engaged in , and was
engaging in, unfair labor practices by threatening the
Charging Party with disciplinary action because in her
capacity as a union representative , she was seeking
clarification of certain information furnished the Union by
Respondent, thus violating Section 8(axl) of the Act.
In its duly filed answer Respondent denied the commis-
sion of any unfair labor practices.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
At all times material herein, Respondent, a corporation
duly organized under and existing by virtue of the laws of
the State of New York, has maintained an office and place
of business at 200 Park Avenue in the city and State of
New York and other places of business in the various
States of the United States where it is and has been at all
times material herein continuously engaged in providing
telecommunication services and related services.
During the year preceding issuance of the complaint,
which is a representative period, Respondent in the course
and conduct of its business operations performed services
valued in excess of $10,000,000 of which services valued in
excess of $50,000 were performed in and for various
enterprises located in States other than the State wherein it
is located. At all times material Respondent has been an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
II. THE LABOR ORGANIZATION
Local 1150, Communication Workers of America, at all
times material has been a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issue is a very narrow one: Did Respondent
Company violate Section 8(a)(1) by issuing the Charging
Party, Anne H. Walden, a disciplinary warning because of
AMERICAN TELEPHONE & TELEGRAPH CO. 785
the manner in which she conducted herself while engaged
in union business on September 17, 1973.
Walden has been employed by Respondent since 1946.
During this tenure she has held various positions with the
Union and currently was traffic section chairman, member
of the union executive board, convention delegate and a
member of the long-lines bargaining committee.
In the summer of 1973, discussions took place between
Respondent and the Union regarding the closing of one of
four overseas operating districts and the transfer of some
20 employees from the discontinued district to the others.
In this connection Walden asked Respondent for certain
data to be used by her in evaluating the proposed change.
On Tuesday, September 14, W. R. Beckett, a district
operations manager for Respondent, submitted some
information in writing to Walden that she had requested
earlier that day and which, according to her, was
incomplete.'
On Monday morning, September 17, Walden attempted
to see Beckett about the matter. He was not in his office
and she left a message to have him call her. He called but
was unable to reach her. Thereupon, without notice and on
company time (contrary to the requirements of the
collective-bargaining agreement),2 she went to Beckett's
office again.
According to Beckett's testimony, a few preliminary
remarks between them were cordial enough but then "the
meeting changed dramatically." In a very loud voice
Walden told Beckett that she was there to talk about the
"garbage" he had sent her. Beckett asked, "what garbage?"
Her tone increasing in volume to a shout, she replied, "that
little piece of paper in that big envelope." Beckett was
about to ask Walden what was wrong with it, when
Walden continued saying that it was the type of informa-
tion she had requested several times from his superior
Nichols and had requested from him the previous Friday.
At this point Beckett cautioned her that "if her tone and
manner did not change" the meeting would be terminated.
This had no effect on Walden who loudly proclaimed that
Nichols and Beckett "should be intelligent enough to
interpret her request." Beckett then said he had provided
the information she had requested in their Friday meeting
and Walden shouted that she was not there to play games.
Beckett again cautioned her to change her tone and
manner . Even louder, Walden made some remark about
Beckett's lack of intelligence. At this point Beckett told her
the meeting was over and Walden left his office.
Three company witnesses , all supervisors, who were
working in rooms near or adjacent to Beckett's office
(which was a cubicle partially enclosed by banker's
partitions that did not extend from floor to ceiling) when
the exchange took place, all testified that they overheard
only one loud voice which they recognized as Walden's
and which caused people to look up from their work and
listen . Sandra Hooper, whose desk was located about 13
feet from Beckett's office, heard Walden say something to
I Respondent maintains that the information supplied to Walden was
what she asked for. The testimony on this is far from clear. In any event,
which was correct is unnecessary to decide since for the purposes here, I
shall assume that both sides took these positions in good faith.
2 Sec . 15.60 of the collective-bargaining agreement reads as follows:
the effect that "she didn't have to accept this garbage." The
other two did not hear what was said but one, Elizabeth
Pisko, testified credibly and without denial that when she
heard Walden's voice, which was extremely loud, she
commented, "there she goes again." In explanation, Pisko
testified that on a previous occasion in her office Walden
was so loud that Pisko asked her to kindly lower her voice
or Pisko "could not have dealings with her." Walden
lowered her voice to a whisper.
According to Beckett's further testimony, on the basis of
the encounter with Walden Beckett issued a written
warning for Walden's personnel file. When Beckett
confronted Walden with the warning and asked her if she
understood it she acknowledged that she did not but said
that she would not accept it. Beckett pointed out that he
was not asking her to accept it-only that she understand
it. Walden reiterated that she would not accept it and
added that "it would probably happen again."
According to Walden's direct testimony, not having
heard from Beckett by 9:45, she went to his office where
she asked if he had received her message . He said he had
and had tried to call her but the lines were busy. She
remarked, "You mean to say the lines are busy all this
time?" Beckett replied "That [she] should hope [her]
supervisors would be more productive." Walden then held
out to Beckett the "little piece of paper" she had received
in a large envelope the previous Friday and asked if that
was the information he had sent her on Friday. When he
acknowledged what it was she asked him, "Well, what is
it?" She then continued, saying that "It seems to me I have
requested this information many times, we have had this
same type of information . . . why is it so difficult, your
people are so hard to understand what I am looking for."
At this point Beckett "got very upset and . . . accused
[her] of storming into his office and talking loud and so
forth." She replied that he did not have to tell her how to
talk; she knew how to talk. But she asked him for
information three or four times, that what he sent her she
felt was an insult to her intelligence . He became very
annoyed and accused her of shouting at him-which she
was not. Anyway, after this she said nothing further and
left the office.
About a half hour later, according to Walden's further
testimony, she was called back to Beckett's office. About
what happened with Beckett at this point, Walden testified
as follows:
When I went to the eight floor and went back into the
office, he went into Mr. Nichols' office, he said, will
you come with me? And I went in, and he sat behind
the desk and I sat in front of the desk. And he said that
he was contacting me not because of my responsibili-
ties representing the Union, but was as an employer-
employee contact. And he began to talk about the way
I talked to him. He accused me of disrupting his office.
And he also stated that the prior week, the week before,
To the extent that service and coverage requirements were met, an
employee who is an authorized representative of the Union shall, with
reasonable notice and upon request of the Union, be excused without
pay or granted leaves of absence without pay to conduct union
activities.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I had spoken to a Mr. Olesik in a manner that ...
definitely they didn't like. If I ever spoke to a Company
supervisor in that tone, I would be subject to strong
discipline . And he would get my personnel file from the
district that I worked in, overseas D, and he would so
make a notation to be entered in my personnel file
regarding the matter.
I objected. I discussed it with him. And I told him I
didn't feel it was fair. And I would definitely object to
it because I did not feel that I was abusive and that I
was not disrupting to his office.
When Walden was further questioned by the General
Counsel as to the tone of voice she was using in the first
meeting with Beckett, she answered, "I don't know if you
would classify me as speaking loud or not, and sometimes I
think I have a voice that carries. I wasn't talking loud to
him initially. Now, when he started at me about the way I
am coming into his office, because he got very upset, I
could tell visibly he was upset. He turned very red. He said
to me, 'Don't come into my office talking to me like that.' I
said, 'Don't tell me how to talk.' And I may have been
quite clear."
On cross-examination when questioned if she had used
the word "garbage" in a discussion with Beckett, Walden
would not deny it testifying, "I don't recall using the word
'garbage,' and I have used it. Garbage is garbage. I may
have used the word garbage at various times." Elsewhere
on cross-examination she denied that she spoke to Beckett
in a "sudden loud outburst or uproar"-one of the
dictionary definitions of "shout." She also denied telling
Beckett , "I thought you would be intelligent enough to
interprete my requests."
Conclusions
In my opinion the evidence here considered in the light
of the record as a whole preponderates strongly in favor of
Respondent's version which accordingly I accept. And
even allowing for an element of exaggeration in Beckett's
testimony, I further find that Walden's conduct exceeded
the limits permitted her when involved in union business.
Granted that union representatives are vouchsafed great
leeway in verbal exchanges with management in contract
negotiations and grievance settlements. But this is not such
3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
a case . This was a peripheral procedural matter totally
devoid of substance and I can see very little reason for
what I and Respondent obviously consider to be gratuitous
conduct on the part of Walden. Nor can one excuse her on
the possibility that she did not know better. She demon-
strated on the witness stand that she is a very knowledgea-
ble person. Moreover, that she knew better was further
demonstrated by her having only a week before the run-in
with Beckett taken exactly the same position as Beckett
took with her. That matter involved her representation of a
grieving employee when the complaint was not that the
reprimand against the employee was unjustified but that
the "tone" and "manner in which it was delivered to the
employee was objectionable. In voicing this objection to
Beckett at the time Walden relied on a provision of the
collective-bargaining agreement (Section 19.30) providing:
The Company and the Union recognize that it is in the
best interest of both parties, the employees and the
public, that all dealings between them continue to be
characterized by mutual responsibility and respect .. .
In view of the foregoing I shall recommend that the
complaint be dismissed.
CONCLUSIONS OF LAW
1. American Telephone and Telegraph Co. is an
employer engaged in commerce in a business affecting
commerce and the Union is a labor organization as those
terms are defined in Section 2(2), (5), (6), and (7) of the
Act.
2. American Telephone and Telegraph Co. did not
violate Section 8(axl) of the Act by its issuance to Anne H.
Walden a written warning reprimanding her for her
remarks and conduct in a meeting with William R. Beckett
on September 17, 1973.
On the basis of the foregoing findings of fact, conclu-
sions of law and the entire record, and pursuant to Section
10(c) of the Act, I issue the following recommended:
ORDERS
The complaint shall be and hereby is dismissed in its
entirety.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.