Communications Workers of America Local 9509

National Labor Relations Board - Board Decisions

May 31, 1991

303 N.L.R.B. 264 (N.L.R.B. 1991)

264
303 NLRB No. 35
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel and the Respondent have excepted to some of the
judge’s credibility findings. The Board’s established policy is not to overrule
an administrative law judge’s credibility resolutions unless the clear preponder-
ance 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.
We also find without merit the Respondent’s allegation of bias and preju-
dice on the part of the judge. On our full examination of the record and the
judge’s decision, we perceive no evidence that the judge made prejudicial rul-
ings or demonstrated bias against the Respondent in his analysis or discussion
of the evidence.
2 The Respondent alleges that changed circumstances make the notice-post-
ing requirement of the Order no longer appropriate. In this respect, the Re-
spondent requests that the record be reopened to receive an affidavit from its
current president averring that the Respondent has no regular full-time office
clerical employees at this time, but instead utilizes its own members to per-
form the office work. The General Counsel opposes this request. We deny the
Respondent’s request to reopen the record. We note that the Respondent con-
tinues to have employees, who are its members, perform the office work at
its San Diego facility over which it still has access and control. The posting
requirement therefore is still appropriate, whether or not the facts asserted in
the affidavit are true. Additionally, in order to assure that the former office
clerical employees are notified of our decision, we will require the Respondent
to mail notices to them. See Missouri Portland Cement Co., 291 NLRB 1043
(1988). 1 All dates refer to 1989 unless otherwise indicated.
Communications Workers of America, AFL–CIO,
Local 9509 and Jane A. Cole. Case 21–CA–
27216
May 31, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On December 27, 1990, Administrative Law Judge
Michael D. Stevenson issued the attached decision.
The Respondent filed exceptions, a supporting brief,
and an answering brief. The General Counsel filed
cross-exceptions, a supporting brief, and an answering
brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Com-
munications Workers of America, AFL–CIO, Local
9509, San Diego, California, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the Order as modified.
Insert the following as paragraph 2(c) and reletter
the subsequent paragraph.
‘‘(c) Mail a copy of the attached notice to all office
clerical employees employed by the Respondent at its
San Diego facility at the time of its unfair labor prac-
tices. Such notice shall be mailed to the last known ad-
dress of each employee. Copies of the notice, on forms
provided by the Regional Director for Region 21, after
being signed by the Respondent’s authorized represent-
ative, shall be mailed immediately upon receipt by the
Respondent, as directed above.’’
Brian J. Sweeney, Esq., for the General Counsel.
Larry Drasin, Esq. (Lawrence Drasin & Associates), of Los
Angeles, California, for the Respondent.
Jane A. Cole, Pro Se, of San Diego, California, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at San Diego, California, on May
31, June 1, and July 10 and 11, 1990,1 pursuant to a com-
plaint issued by the Regional Director for the National Labor
Relations Board for Region 21 on January 30, 1990, and
which is based on a charge filed by Jane A. Cole (Charging
Party or Cole) on December 5. The complaint alleges that
Communications Workers of America, AFL–CIO, Local
9509 (Respondent) has engaged in certain violations of Sec-
tion 8(a)(1) of the National Labor Relations Act (the Act).
Issues
Whether Respondent acting through its agent, Union Presi-
dent Douglas J. Woodbury, committed one or more of the
following acts, thereby interfering with, restraining, and co-
ercing employees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
(1) Announced, promulgated, and maintained a rule pro-
hibiting employees from discussing wages, hours, and other
terms and conditions of employment and from participating
in union and/or concerted protected activities;
(2) Threatened employees who engaged in union and/or
other protected concerted activities, with withdrawal of aid in
obtaining employment with an employer with whom Re-
spondent has a collective-bargaining relationship, with a lay-
off, with a change in wages, and with discharge.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and to cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of Gen-
eral Counsel and Respondent.
Upon the entire record of the case, and from my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent admits and I find that at all times material, it
is and has been a labor organization within the meaning of
Section 2(5) of the Act. In the course and conduct of its
business operations as a labor organization, Respondent an-
nually receives per capita dues in excess of $50,000 from
265COMMUNICATIONS WORKERS OF AMERICA LOCAL 9509
2 A labor organization which engages in multistate activities such as Re-
spondent here, is an employer under the Act and subject to the Board’s juris-
diction. Office Employees Local 11 v. NLRB, 353 U.S. 313 (1957).
3 Respondent represents large units of employees from these corporations
and a number of smaller companies. Respondent’s membership is approxi-
mately 2500 persons.
4 Respondent currently employs a recently retired member, on a part-time
basis to work on special projects. Both sides agree that this person is not part
of the unit.
Communications Workers of America, AFL–CIO, which is
headquartered in Washington, D.C. I also find that Respond-
ent is, and has been at all times material, an employer2 en-
gaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
This case is about a union at war with itself. One faction
(the ‘‘ins’’) is led by Douglas Woodbury, Respondent’s
president for the past 15 years. He is assisted in running Re-
spondent’s affairs by Louise Rogers and Carol Stegall, exec-
utive vice president and vice president respectively. These
three and certain of their supporters testified for Respondent
both in its case-in-chief and in surrebuttal.
A second faction (the ‘‘outs’’) is led by Judy Beal, for-
merly Respondent’s chief steward until dismissed by
Woodbury in December. Beal was called as an adverse wit-
ness by Respondent; certain of her supporters testified for
General Counsel, both in his case-in-chief and in rebuttal. An
election of Respondent’s officers is fast approaching and
may already have occurred by the time this decision is pub-
lished.
All or most of Respondent’s officers and subordinate offi-
cials such as stewards are on leaves of absences from their
corporate employers such as PacBell or AT&T.3 Because the
union jobs are more highly prized than the corporate jobs,
the factions have become bitter rivals. Long-term friendships
have dissolved as for example between Rogers and Beal;
even two sisters Stegall and Levin are on opposite sides. In
some cases Beal’s supporters have voluntarily relinquished
their union jobs and returned to their corporate jobs as a pro-
test of Woodbury’s termination of Beal.
While this internal strife was occurring, Respondent em-
ployed two clericals, Catherine Yvonne Shull (formerly Cath-
erine LeCroix) who started work on January 18, 1988, and
Jane Cole who started work in May 1988. Cole quit her job
in January 1990, and has not yet been replaced. Much of the
work Cole formerly did is now being done by Stegall (who
also performed the work before Cole was hired).
Shortly after Cole was hired, both clericals participated in
organizing activities on behalf of Office and Professional
Employees International Union, Local 30 (OPEIU). Ulti-
mately these efforts were successful and in late 1989,
Woodbury began negotiating with Kitty Simmons, business
representative for OPEIU and witness for the General Coun-
sel at hearing. After five bargaining sessions, the parties
reached agreement on a labor contract covering a one-person
unit of Respondent’s clericals, a position now held by Shull.
On or about June 22, 1990, the agreement was signed (R.
Exh. 1).4
Shull and Cole’s organizing activities on behalf of OPEIU
became embroiled in Respondent’s political turmoil as re-
cited below. All of this forms the background for the unfair
labor practices of which Respondent stands accused. Before
sorting out the contested facts, I include some additional
background.
2. Respondent and OPEIU’s bargaining history
Beginning in the early to mid-1970s, OPEIU represented
Respondent’s clericals. So far as this record shows, up to
January 1988, the collective-bargaining relationship was sat-
isfactory and unremarkable. Then a single grievance was
filed and slated for arbitration, but ultimately was settled be-
fore evidence was presented. That grievance, on behalf of
clerical Penny Massee, allegedly motivated certain of
Woodbury’s actions with respect to Shull and Cole. Before
explaining, earlier events must be considered.
On October 28, 1987 and again on November 2, 1987,
Woodbury sent notices to OPEIU terminating the labor
agreement as of February 28, 1988 (G.C. Exhs. 16 & 17).
On December 24, 1987, Respondent’s attorney sent a letter
to the Federal Mediation and Conciliation Service which
reads as follows:
December 24, 1987
Federal Mediation and Conciliation Service
880 Front Street, Suite 4-N-24
San Diego, CA 92101
California State Conciliation Services
1350 Front Street
San Diego, CA 92101
Re: CWA Local 9509 Termination of Contract with Of-
fices and Professional Employees Union, Local 542
Gentlemen:
Please be advised that Communication Workers’ of
America, Local No. 9509 has given notice to the Pro-
fessional Employees Union, Local 542 that it is termi-
nating its agreement with Local 542 effective on the
termination of its current contract on February 28,
1988. It is the position of Communication Workers’ of
America, Local 9509 that there is no obligation to ne-
gotiate in as much as the employer no longer directly
employees (sic) any employees covered by the agree-
ment and therefore there is no longer a bargaining unit.
Sincerely,
LAW OFFICES OF DONALD A. HON
/s/ Donald A. Hon
DONALD A. HON
Attorney at Law
DAH/pjc
cc: Kathy Simmons, Trustee OPEIU
4990 Williams Street, Suite 3
La Mesa, CA 92041
CWA, Local 9509
7548 Trade Street
San Diego, CA 92121
(G.C. Exh. 3)
Simmons testified that she accepted Hon’s representations
in the letter, as she was aware that both clericals employed
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 No issue was raised by any party pursuant to Rule 408 of FRE that any
statement allegedly made by Beavers was barred because it was made in the
course of settlement negotiations.
6 When Rogers first testified, she was asked on cross-examination to explain
whether she was romantically involved with Woodbury. She refused to give
a clear answer to the simple question, in violation of my order for her to do
so; instead, she became evasive, argumentative, and defensive. I refused to
strike her testimony, but I believe her testimony merits close scrutiny, as her
demeanor indicates something more than a purely platonic relationship with
Woodbury.
7 The petition recites that a demand for recognition was made on June 27,
1988, and refused on July 15, 1988. Simmons did not adequately explain the
dates which were not consistent with Cole’s testimony as to when she signed
the card.
by Respondent had left the job through attrition. Respondent
did not immediately replace the clericals, but instead began
using on a temporary basis some of Respondent’s own mem-
bers who had been laid off from their jobs.
Returning to the Massee arbitration, I note that OPEIU
was represented by Attorney Clayton Beavers who entered
into the settlement, on behalf of Massee. According to
Woodbury, Beavers told Woodbury during settlement nego-
tiations5 that these ‘‘’onesies and twosies’ are a pain in the
ass. I don’t want these onesies and twosies’’ (Tr. at 187).
This was a reference to one and two person bargaining units,
according to Woodbury.
Beavers was not called as a witness. At one point General
Counsel represented that he had just spoken with Beavers by
phone—this was about 1 month after the issue had first aris-
en—and requested a continuance to bring in Beavers as a re-
buttal witness (Tr. at 886–887). Later after consultation with
his superiors, and before I ruled on the motion for a continu-
ance, General Counsel withdrew his motion for a continu-
ance because General Counsel’s supervisor didn’t believe the
case would turn on the issue (Tr. at 951).
Respondent called Rogers back on surrebuttal to corrobo-
rate Woodbury.6 She didn’t exactly accomplish that feat.
First, she didn’t recall Beavers using the term ‘‘onesies and
twosies.’’ What he did say, according to Rogers, is that he
didn’t have the time, the money, nor the energy to spend on
a case for such a small unit (Tr. at 999–1000). Beavers alleg-
edly added that it cost more for OPEIU to do the job for one
or two people than the Union gets in dues (Tr. at 1001).
Simmons was also called back as a witness, this time by
Respondent. She testified that OPEIU, prior to a recent
merger, represented about 36 bargaining units. Of these, 10
units are two person or one person units. Although Simmons
played an undefined role in the Massee arbitration, she was
not aware of any statement made by Beavers as described by
Woodbury. Finally, Simmons explains that OPEIU frequently
organizes the clericals employed by other unions, and typi-
cally these units are small.
On the basis of this evidence, I find that Beavers never
made the statement attributed to him by Woodbury. If he did
make the statement, either as described by Woodbury or as
described by Rogers, it could not reasonably be interpreted
as an official statement of OPEIU policy nor relied on by
Woodbury to explain subsequent actions not yet reported in
these facts.
3. The clericals’ union activities
According to Woodbury, he had desired an office manager
for some time prior to the employment of Cole in May 1988.
In fact, according to Woodbury, he had offered to make a
clerical named Ethel Comp, employed by Respondent be-
tween December 1986 and October 1987, office manager.
However, a month after the offer was made, Comp quit to
relocate to another part of the country. Other clericals who
followed Comp and preceded Cole did not work out, stated
Woodbury. Although Woodbury was aware Cole had been
fired from her former job at PacBell for poor attendance,
Woodbury testified that Cole had been hired as a clerical
with the expectation she would become office manager with-
in a short time. Both Stegall and Rogers testified they ad-
vised Woodbury not to promote Cole immediately, as this
would be unfair to Shull who was 6 months senior to Cole.
Moreover, Cole had not proven herself able to function in
Respondent’s office setting. Accordingly, Woodbury accept-
ed the advice from Rogers and Stegall and decided to wait,
without having told Cole about his alleged future plans for
her.
Meanwhile, Shull and Cole became fast friends on the job
and jointly decided that certain aspects of their job could
stand improvement. Accordingly in July 1988, both clericals
signed union authorization cards which they forwarded to
Simmons. On July 21, 1988, Simmons prepared an RC peti-
tion for a unit composed of Shull and Cole (G.C. Exh. 2).
Copies of the petition and of the signed union authorization
cards were submitted to Woodbury (G.C. Exh. 2).7
On or about August 1, 1988, Woodbury met with Cole and
told her that he desired to promote her to office
manager/confidential secretary. After considering the offer
over night, Cole accepted the promotion and received a pay
raise from $8 to $12 per hour. Shortly after this promotion,
Stegall called Simmons to say that Cole had been promoted
to a position as office manager, a statutory supervisor, and
because that left only a one person bargaining unit, the unit
was not appropriate for bargaining. Simmons accepted the
representation, and after conferring with both Shull and Cole
withdrew the RC petition sometime in mid-August 1988.
Subsequent to these events, Woodbury claims to have pre-
pared and Stegall testified that she typed a letter to Simmons
which reads as follows:
September 7, 1988
Kitty Simmons
OPEIU Local #542
4990 Williams Avenue, Suite 6
La Mesa, CA 92041
Dear Kitty,
Please be advised that CWA Local 9509 is agreeable
to renegotiating a new collective bargaining agreement
with your union. Contact me at your earliest conven-
ience so we can make arrangements to begin bar-
gaining.
Sincerely,
/s/ Doug Woodbury
Douglas J. Woodbury
President
DJW/cls
(R. Exh. 2)
267COMMUNICATIONS WORKERS OF AMERICA LOCAL 9509
8 Shull testified that this conversation occurred in late July 1988, but assum-
ing Cole knew when she was promoted, I find the conversation must have
been later than described by Shull.
Stegall also testified that after the letter was signed, she
placed the letter in an appropriately addressed and stamped
envelope which she then placed in the office mail basket for
mailing by regular mail.
Simmons testified she never received this letter, had no
knowledge of its contents, and therefore never responded to
it.
Sometime after Cole had been promoted,8 Shull talked to
Woodbury in his office and told him ‘‘it was time to cut the
bullshit out because I realized what he had done with Jane
and I wanted to know what that meant with me being rep-
resented’’ (Tr. at 269). Shull went on to testify that she was
aware that Cole was made her supervisor so they would be
ineligible for representation. Woodbury stated that a union
wouldn’t represent a bargaining unit of one, so Shull called
Simmons to report what had happened and that the petition
should be withdrawn.
Meanwhile Shull and Cole continued working together, for
the most part doing exactly what they had been doing before
Cole’s alleged promotion. At one point, a new system was
introduced by which those persons desiring clerical work to
be done would need to have the work approved either by
Stegall or Rogers, who also determined priorities.
During a Christmas party in 1988, Shull, Cole, Stegall,
Rogers, and several of the stewards circulated a ‘‘wish list’’
around. Each person was supposed to write on it what they
desired for Christmas within a certain price range. Shull
wrote down as a joke that she desired union representation
for Christmas. When Woodbury became aware of this, he
stated, ‘‘that’s not funny!’’ Stegall interpreted Shull’s act as
a slap in the face to Respondent.
Due to severe medical problems, Shull had been missing
a great deal of work. Either Woodbury or Stegall told Cole
to counsel Shull and warn her that improvement was nec-
essary. Cole followed instructions and documented the meet-
ing of August 31 (R. Exh. 4).
On or about November 6, Shull prepared a letter to Re-
spondent’s executive board, which reads as follows:
November 6, 1989
Dear Executive Board Member of CWA Local 9509:
Since I am not Union represented and have no one
else to defend me, I wish to appear before the Novem-
ber Executive Board meeting in an attempt to remedy
actions taken on October 30, 1989 regarding my antici-
pated disability and the conditions of the probation
which I have been placed on.
The following are items I seek to be remedied:
o No disability benefits. The Union should pay the dif-
ference between what I receive from SDI and my
weekly wages.
o My IRA account being contingent on the probation
period. I want it reinstated as it has nothing to do
with my attendance.
o One (1) year probation for attendance (October 30,
1989 to October 29, 1990) I feel 6 months is more
reasonable and in line with other companies.
o Termination with out progressive discipline. As per
documentation I have requested guidelines and have
been told none would be established. I feel termi-
nation would be unfair and unreasonable. If needed,
progressive discipline should be followed.
I have enclosed copies of documentation along with my
attendance records for your review. A summary of my
attendance for the past year is as follows
Occur-
rences Full Days Partial Days
RELATED TO PLANNED SURGERY
7 7 2
OCTOBER 1988 TO OCTOBER 1989
11 14 3
- 6 - 6
5 8
I am entitled to 6 days, at 4 hours per month, accrual
sick leave. Since the surgery should take care of the
health problem I should not experience the number of
occurrences that have accrued in the past. Taking in to
consideration the total number of occurrences and days,
minus the allowed 6 days, I feel my attendance falls
within an acceptable range.
I wish to thank you in advance for taking this matter
into consideration.
Sincerely,
/s/ Cathy LeCroix
Cathy LeCroix
enclosure
cc:
Doug Woodbury Louise Rogers
Bob Sarsfield Carol Stegall
Frank Sarmiento Nancy Hermann
Patsy Maier Judy Beal
(G.C. Exh. 8)
Shull also prepared a note to Bob Sarsfield, Respondent’s
secretary/treasurer, and a Woodbury supporter, asking that
she be scheduled for the executive board agenda (G.C. Exh.
9). Before the meeting began on November 6 or 7, Shull also
asked Woodbury for permission to speak at the executive
board, but Woodbury refused permission and stated he would
discuss the matter with her the next day. Woodbury success-
fully kept Shull’s letter off the agenda.
The following day Woodbury told Shull that he had
grounds to terminate her for writing the letter to the execu-
tive board. Rogers had strongly advised Woodbury to termi-
nate Shull on the spot for insubordination. However,
Woodbury declined to fire Shull, giving her an oral rep-
rimand instead. There followed a discussion of Shull’s med-
ical problems, her attendance, and other personal concerns.
Woodbury concluded the meeting by telling Shull that if she
discussed any personnel matters or complaints with anyone
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Woodbury denied giving Shull any such instruction. Both Stegall and Rog-
ers corroborated Woodbury that he didn’t state a general rule, but merely told
Shull not to discuss her personal grievances with officers or stewards of the
local. I find Shull’s account of this verbal rule more credible.
10 I have reviewed the testimony of all witnesses who testified regarding the
November 21 meeting and the notes taken by Foxyne Hinton, a Woodbury op-
ponent and General Counsel rebuttal witness (G.C. Exh. 18). The account of
the meeting provided below is my best effort after considering the evidence.
11 Sexton testified he learned of Shull’s letter after he received a copy in
the mail sent to him by an unknown person.
other than himself, Rogers or Stegall, she would be termi-
nated.9
On November 21, Woodbury attended a general member-
ship meeting of the Union. Like the executive board meeting,
both Woodbury supporters and opponents turned out for
what was to be a raucous and disorderly meeting and the cat-
alyst was to be Shull’s letter of November 6 recited above.
Exactly who said what at this meeting cannot be deter-
mined with precision. Both General Counsel and Respondent
called Woodbury’s opponents and supporters respectively, to
testify regarding relevant events. Some differences are evi-
dent,10 but all seem to agree that the subject was introduced
by Tim Sexton, a Woodbury opponent and witness for the
General Counsel.
Sexton asked Woodbury in front of the 30 or more
attendees whether the office clericals are represented by a
union, Woodbury answered that they are not. Sexton also
questioned why Shull’s letter to the executive board had not
been discussed at the prior meeting.11 Robert Sarsfield, a
union official and a Woodbury supporter explained that
Shull’s letter hadn’t been discussed because she was not a
member of the Union and the executive board lacked juris-
diction.
Woodbury said that OPEIU was not interested in rep-
resenting ‘‘onesies or twosies’’ and thus was not interested
in representing Respondent’s single clerical, Shull.
Woodbury went on to explain that Cole was then a super-
visor and confidential secretary, so she was not eligible for
the unit. In any event, Woodbury added, Respondent’s wages
and benefits were better than what the could expect if they
were represented by OPEIU and they were better off without
the Union. Sexton replied that he had spoken to Simmons
before the meeting and she said OPEIU was interested in
representing one or two person units.
To this, General Counsel rebuttal witness Frank Sarmiento,
a Woodbury opponent, and Respondent vice president in
charge of organizing, slammed his fist down loudly and pro-
claimed that Woodbury’s remarks were similar to those he
heard from employers he was trying to organize. Woodbury
denied he was opposed to the clericals being represented.
After further heated discussion, a motion was passed re-
quiring or encouraging Respondent’s clericals to be rep-
resented. Woodbury said that while union representation was
a matter of the clerical’s choice, he would honor the mem-
bers’ wishes and accept the spirit of the motion to be taken
back to the clericals. As Woodbury left the podium, some
persons (all Woodbury opponents) heard him say to himself,
‘‘It’ll never happen.’’
On the day after the membership meeting, November 22,
Woodbury talked to Cole at the union office. He told Cole
about the members’ vote that clericals should be represented
by a union. Woodbury added that before Cole decided on her
preference, she should consider factors such as initiation fees
and membership dues. Woodbury continued, that a decision
to select a union might affect Woodbury’s efforts to secure
Cole’s old job back at PacBell. That is, Woodbury stated, he
could be accused of negotiating a sweetheart contract or of
playing favorites. (Prior to this conversation, Cole had re-
quested Woodbury’s assistance in returning to her old job).
Notwithstanding the above conversation, on November 29,
both Cole and Shull signed union authorization cards for the
second time (appended to G.C. Exh. 4). These cards were
forwarded to Simmons who called Woodbury within a day
or so of receipt, to inform him of the clericals’ desires. After
completing his phone conversation with Simmons, Woodbury
walked outside his office to the clerical area and asked Cole
if the desire for union representation included her. When
Cole answered affirmatively, Woodbury explained that Cole
would have to be returned to the unit and then because a
new office manager would have to be hired, either Cole or
Shull would have to be laid off. Woodbury concluded by
saying he wasn’t certain if Cole’s salary would be affected
by this change.
The following day, Woodbury asked Cole to put her desire
to return to the unit in writing so that later on, she couldn’t
claim she was coerced. As to Cole’s salary, Woodbury de-
cided to ‘‘red-line’’ it. That is, while Shull would receive
normal raises, Cole’s salary would be frozen until such time
as parity was achieved. This device would avoid the problem
of Woodbury having to reduce Cole’s salary, a procedure
which Woodbury’s opponents in the Union would not view
with favor. A few days later, Cole was relieved of her key
to Woodbury’s office.
On December 4, Simmons sent Woodbury the following
letter:
December 4, 1989
Doug Woodbury
President
CWA, Local 9509
7548 Trade Street
San Diego, California 92121
Dear Mr. Woodbury:
By way of this letter, Office & Professional Employ-
ees International Union, Local #542 makes demand for
recognition as the Certified Bargaining Agent, for all
secretarial and clerical employees employed by the
Communication Workers of American (sic), Local
#9509. It is clear that OPEIU, Local #542 represents
the majority of these employees.
As per your request, December 1, 1989, I am enclos-
ing photo copies of the signed Representation Applica-
tion Cards executed by the current employees.
After your review, please notify me as to times and
dates of availability for negotiations to begin.
Fraternally
Kathleen (Kitty) Simmons
Business Representative
International Representative
KS/mco
opeiu#542
afl-cio
Enclosures
269COMMUNICATIONS WORKERS OF AMERICA LOCAL 9509
(G.C. Exh. 4)
On December 11, Woodbury answered with a letter of his
own:
December 11, 1989
Kitty Simmons
Business Representative
OPEIU, Local 542
4990 Williams Avenue, Ste. 3
La Mesa, CA 92041
Dear Ms. Simmons,
As I previously stated to you, CWA Local 9509 is
willing to negotiate a collective bargaining agreement
with OPEIU Local 542.
However, there is a legal question as to the status of
Jane Cole. I am deferring this issue to the NLRB. By
sending a copy of this correspondence, I am requesting
the NLRB to resolve this issue. In this manner, all par-
ties rights will be protected and a third neutral party
will determine the resolution.
In the meantime, it is logical and reasonable that we
begin formal negotiating upon the outcome of the
NLRB’s determination.
Should you have any questions or want to further
discuss this issue, please don’t hesitate to contact me.
Sincerely,
/s/ Doug Woodbury
Doug Woodbury
President
DW:jc
cc: Brian Sweeney
National Labor Relations Board
555 W. Beech Street
San Diego, CA 92101
(G.C. Exh. 5)
4. Clericals’ political activities
Both Shull and Cole denied that they participated in the
internal politics of Respondent, either overtly or covertly.
However, on January 18, 1990, Cole had been overheard at
work by Rogers talking by telephone to Woodbury opponent
Foxyne Hinton about Respondent’s membership meeting held
one or more nights before. When Rogers told Cole that there
was work to be done, Cole ended the phone call and ob-
jected to Rogers listening to Cole’s private phone conversa-
tions. When Rogers admonished Cole not to be involved in
union politics, Cole quit on the spot and walked out.
A few days before that incident, Rogers had overheard an-
other call between Cole and Pam Levin, another Woodbury
opponent. As Rogers inadvertently (she testified) picked up
an extension phone at the same time as Cole did, she heard
Levin ask ‘‘Is the ‘asshole’ there?’’ After Cole said
Woodbury wasn’t in, Levin asked if he were expected back
that day. To this Cole replied, ‘‘Not if I’m lucky.’’ Levin
then said, ‘‘We could be lucky if he’s gone all week.’’ Then
Cole concluded by saying, ‘‘We could get real lucky and
he’ll be gone all year.’’
Cole testified that she had worked for PacBell for 13 years
and all or most of that time, she had been a member of Re-
spondent, and still had a number of friends in the Union.
Since 1986, however, Cole had not been a member of Re-
spondent.
Meanwhile Beal and others instituted a recall campaign at-
tempting to unseat Woodbury. On January 24, 1990, Beal
wrote the following letter:
January 24, 1990
Robert Sarsfield - Secretary-Treasurer
CWA Local 9509
7548 Trade Street
San Diego, CA. 92121
Dear Bob,
Enclosed you will find petitions demanding the recall
of Douglas J. Woodbury from the office of President of
CWA Local 9509. The charges against Mr. Woodbury
are as follows:
a. Willfully violating Article VIII, section 7A2 of the
Local by-laws, which requires a 2/3 vote of the General
Membership to remove a Chief Steward.
b. Willfully violating Article VIII, section 2B3 of the
Local by-laws, which requires the Local President to
initiate and execute Local Policies. By threatening and
interfering with the Local Secretaries’ desire to become
union represented, President Woodbury deliberately vio-
lated action taken by the Local Membership at the Gen-
eral Membership Meeting on November 21, 1989.
There are 96 pages of petitions with an approximate
total of 821 signatures. Please process these petitions on
behalf of the members and in accordance with the
CWA Constitution.
Sincerely,
/s/ Judy Beal
Judy Beal
Member in Good Standing
CWA Local 9509
cc: Douglas J. Woodbury
Harry Ibsen
Jim Booe
(R. Exh. 6)
About a week later, Beal filed charges against Woodbury
with an official of the national union CWA. In pertinent part,
the letter reads as follows:
2-2-90
Jim Booe
1925 K St. N.W.
Washington, D.C. 20006
Dear Jim,
I am filling (sic) the following charges against Douglas
Woodbury, President, Local 9509, for the reasons stat-
ed. All information submitted is true to the best of my
knowledge and these charges are filed in good faith.
1) Mr. Woodbury willfully and knowingly violated
our local bylaws Article VII, section 7A2, on Dec. 5th,
1989, when he removed me as chief steward without a
two-thirds vote of the membership. (See attachment #1)
2) Mr. Woodbury willfully and knowingly calculated
strategies to keep the office secretaries from becoming
union represented after the membership made a motion
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that was passed with only one dissenting vote on Nov.
21, 1989. (See attachments #2 and letter from
Woodbury to Simmons dated Dec. 11, 1989) The
charges filed with the NLRB by the secretaries has had
a trial date set.
These charges are being filed with you since there
would not be any justice served within our local for
fear of reprisals. As an example, for speaking out
against Doug Woodbury and Louise Rogers in an at-
tempt to exercise the right of political opposition, three
Vice Presidents out of four, and five district stewards
out of six and the chief steward have all be removed,
forced to resign, or are not allowed to perform the du-
ties of the offices they were elected.
Please assist us in regaining our local.
Sincerely,
/s/ Judith Beal
Judith Beal
cc: Harry Ibsen
(R. Exh. 5)
Finally Beal prepared a flyer which she distributed to her
supporters. In part this document reads as follows:
UNFAIR LABOR PRACTICE: One of the charges against
President Woodbury (on the recall petition) dealt with
his interfering with the Local secretaries’ desire to be-
come union represented. Subsequently the Local’s sec-
retaries filed an unfair labor practice against our ‘1989
Labor Leader of the Year.’ The hearing for the unfair
labor practice is scheduled for Thursday, May 31st at
9:00 a.m. at 555 W. Beech Street, 3rd Floor (NLRB of-
fice). It is an open hearing and anyone can attend. Hope
to see you there!
(R. Exh. 8)
B. Analysis and Conclusions
1. Preliminary findings
a. Was Cole a statutory supervisor, manager or
confidential employee
Although this case does not present an 8(a)(5) refusal to
bargain allegation, I nevertheless find it helpful for back-
ground purposes only, to consider Respondent’s claim that
Cole was promoted out of the unit into the job of office
manager, a statutory supervisor, and/or manager or confiden-
tial employees.
As a general rule, the promotion of an employee out of
the unit into a supervisory position is a matter of manage-
ment perogative. KONO-TV Mission Telecasting Corp., 163
NLRB 105, 107–108 (1967). However, if the promotion is
motivated by an unlawful purpose, the Board will become in-
volved. Since Respondent asserts that Cole became a statu-
tory supervisor, Respondent has the burden to prove that sta-
tus. John Ascuaga’s Nugget, 298 NLRB 524 fn. 24 (1990).
I find in this case that Respondent has failed to prove that
Cole ever became a statutory supervisor.
To be sure, Cole was given the title of office manager and
a considerable increase in salary. However, in Mack’s Super-
markets, 288 NLRB 1082, 1084 (1988), the following gen-
eral statement of Board-approved law appears:
First, it is clear that an individual’s status as a super-
visor is not determined by his/her title or job classifica-
tion, but rather is determined from the individual’s
functions and authority. Section 2(11) of the Act de-
fines a supervisor as follows:
The term ‘‘supervisor’’ means any individual having
authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge,
assign, reward, or discipline other employees, or re-
sponsibly to direct them, or to adjust their griev-
ances, or effectively to recommend such action, if in
connection with the foregoing, the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The statutory indicia outlined above in Section 2(11) of
the act are in the disjunctive and only one need exist
to confer supervisory status on an individual. Opelika
Foundry, 281 NLRB 897 (1986) and Albany Medical
Center Hospital, 273 NLRB 485 at 486 (1984). See
also, Olympia Plastics Corp., 266 NLRB 519 at 530
(1983). However, in order for supervisor status to exist,
the exercise of one or more of the outlined powers must
be accomplished with independent judgment on behalf
of management in other than a routine or clerical man-
ner. Put another way, the statute expressly insists that
a supervisor, (1) have authority, (2) to use independent
judgment, (3) in performing supervisory functions, (4)
in the interest of management. These latter requirements
are conjunctive. Hydro Conduit Corp., 254 NLRB 433
(1981); NLRB v. Security Guard Service, 384 F.2d 143,
147–148 (5th Cir. 1967). . . . As noted in Hydro Con-
duit Corp., supra, ‘‘The Board has a duty to employees
to be alert not to construe supervisory status too broad-
ly because the employee who is deemed a supervisor is
denied employee rights which the Act is intended to
protect.’’ Westinghouse Electric Corp. v. NLRB, 424
F.2d 1151, 1158 (7th Cir. 1970), cert. denied 400 U.S.
831 (1971).
In finding that Cole was never a statutory supervisor,
under the rules of law quoted above, I do not credit Hinton
who testified that at an executive board meeting of August
2, 1988, Sarmiento asked Woodbury what Cole’s new duties
would be as office manager. Allegedly, Woodbury replied
that Cole’s new title was a title in name only and would not
carry any management responsibilities with it. Woodbury de-
nied making such a statement, no minutes of the meeting
were introduced as proof of Woodbury’s statement, and no
one else, not even Sarmiento, corroborated Hinton on this
point. Yet there is abundant other evidence to show that Cole
was never a statutory supervisor.
For example, I find that Woodbury told both Beal and
Sarmiento that notwithstanding Cole’s promotion, all work
requests would continue to go through Stegall. Both before
and after her promotion, Cole essentially performed clerical
work without using independent judgment or discretion.
NLRB v. A.E. Nettleton, 241 F.2d 130, 132 (2d Cir. 1957).
She did not schedule work, determine priorities or evaluate
Shull, except in the most routine manner. See Gem Urethane
271COMMUNICATIONS WORKERS OF AMERICA LOCAL 9509
Corp., 284 NLRB 1349 (1987). Stegall or Rogers scheduled
the work and determined priorities. Moreover, if Cole were
a supervisor of Shull, along with Stegall and Rogers, who are
admitted supervisors, the ratio of supervisors to employees
would be inordinately high. Compare Luke’s Supermarket,
228 NLRB 763, 763–764 (1977).
As to granting of time off, Cole had no authority to do
this. Compare Tra-Mar Communications, 265 NLRB 664,
684–695 (1982).
It is true that on at least two occasions, Cole spoke to
Shull about her attendance problems. This sporadic exercise
of disciplinary authority is not sufficient to show supervisory
status. Ohio Masonic Home, 295 NLRB 390 (1989); Kent
Products, 289 NLRB 824 (1988); Artcraft Displays, 262
NLRB 1233 (1982). Moreover, Cole was merely following
orders of Stegall when she admonished Shull.
Shull never considered Cole to be her supervisor and un-
derstood that Cole was merely obeying Stegall’s orders in
admonishing her about attendance. As noted in the Facts sec-
tion, above, Cole had an attendance problem of her own,
missing on the average about one work day every month
versus two every month for Shull.
In sum, Cole’s newly defined authority was illusory. Cf.
Ohio Masonic Homes, supra. Respondent has fallen far short
of proving her to have been a statutory supervisor.
Respondent has also failed to prove that Cole was a man-
ager or agent of Respondent. I find no holding out of Cole
with apparent or ostensible authority. No evidence was pre-
sented that Shull or anyone else considered Cole to be acting
for management. Compare Aircraft Plating Co., 213 NLRB
664 (1974). In fact the reverse is true. Cole always identified
with the interests of the unit.
Cole was a confidential employee only if the evidence
proves that she assisted and acted in a confidential capacity
to persons who formulate, determine and effectuate manage-
ment policies in the field of labor relations. It is insufficient
that an employee may on occasion have access to certain
labor related or personnel type information. What is con-
templated instead is that a confidential employee is involved
in a close working relationship with an individual who de-
cides and effectuates management labor policy and is en-
trusted with decisions and information regarding the policy
before it is made known to those affected by it. Inter-
mountain Rural Electric Assn., 277 NLRB 1 (1985); Mega
Van & Storage, 294 NLRB 975 (1989).
Under this test, Cole did not act as Woodbury’s confiden-
tial secretary. In this respect, I note that Cole was rec-
ommended for her job by Nancy Master, a rebuttal witness
for General Counsel and a strong supporter of Judy Beal. Al-
most from the beginning of her so-called promotion, Cole
was suspected of leaking information to Beal’s faction. Yet
the fact is, Shull was also suspected, although neither were
privy to information considered confidential under the
Board’s definition. Woodbury’s suspicion as to the loyalty of
both Cole and Shull made it most unlikely that either would
be entrusted with information of a confidential nature, and
the record establishes no such entrustment was ever made. In
sum, Cole answered mail, screened phone calls, made travel
arrangements, typed correspondence, and performed other
clerical duties which would be expected of a secretary. But
Cole did not perform duties of a confidential nature.
b. Conclusions with respect to single person unit
I conclude my preliminary findings by noting that the
Board will not certify a one-person unit, because the prin-
ciple of collective bargaining presupposes that there is more
than one eligible person who desires to bargain. . . . the Act
does not preclude bargaining with a union on behalf of a sin-
gle employee, if an employer is willing. The Board has never
held, however, that a employer’s refusal to bargain with a
representative on behalf of a one-person unit is a refusal to
bargain within the meaning of Section 8(a)(5). Foreign Car
Center, 129 NLRB 319, 320 (1960).
As noted above, no 8(a)(5) violation has been charged.
Further, I am not asked by General Counsel to find an
8(a)(5) violation on the grounds that said issue has been thor-
oughly and fairly litigated. Under these circumstances, I find
as a matter of background only that Woodbury purported to
promote Cole out of the unit for the purpose of defeating
Cole and Shull’s Section 7 rights to engage in protected con-
certed activities. In addition to the evidence showing that
Cole’s duties never changed in any substantial or significant
fashion after her alleged promotion, other evidence also sup-
ports this conclusions.
Much of this evidence is recited in the Facts and need not
be repeated. For example, I note the timing of Cole’s pur-
ported promotion, shortly after Woodbury received copies of
the clericals’ signed authorization cards. I note Woodbury’s
supposed letter of September 7, 1988, to Simmons, which
she never received, offering to negotiate a contract, when
Simmons had withdrawn OPEIU’s petition almost 1 month
before. I also note the evidence with respect to Woodbury’s
motive in opposing the clericals’ organizing activities, as re-
cited below. In addition, at the time of her so-called pro-
motion or shortly after, Cole told Woodbury that she knew
that her promotion was related to the petition filed by OPEIU
(Tr. at 95). I also credit Sarmiento’s testimony which is con-
sistent with other evidence presented that in a July 1988 con-
versation, Woodbury said all he had to do to stop the
clericals’ organizing campaign was to make one of the secre-
taries a manager.
Evidence explaining why Woodbury opposed the clericals’
organizing activities was provided by Hinton. She testified
that on August 1, 1988, she spoke to Stegall who told her
that Woodbury resented the grievance filed against him by
Penny Massee and the subsequent arbitration which ulti-
mately was settled. According to Hinton, quoting Stegall,
Woodbury resolved never to allow himself to get into that
position again.
Although Stegall ‘‘couldn’t recall’’ this conversation with
Hinton on the day in question (Tr. at 551–552), I credit Hin-
ton’s testimony because it is entirely consistent with other
evidence in the case. For example, Masten testified in rebut-
tal that in the summer of 1988, she had a conversation with
Woodbury himself. She told Woodbury that she couldn’t un-
derstand why he was so upset with the clericals wanting to
go union. To this Woodbury stated that Masten simply didn’t
understand. Masten countered that ‘‘you of all people should
want them to become union.’’ Opposing their organizing, she
told Woodbury, ‘‘goes against everything we believe in.’’
‘‘They should become union. They want to be union’’ (Tr.
at 929).
In response to these entreaties, Woodbury stated, ‘‘I take
care of them, I pay them more than what their contract
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 In fact, Shull could not even discuss her grievances with the Board under
Woodbury’s directive. This is still another reason why Respondent has violated
Sec. 8(a)(1) of the Act. Ibid.
would allow. And I can’t live with some of the restrictions
within the contract.’’ Asked by Masten for examples of re-
strictive conditions, Woodbury cited the expense of overtime
hours (Tr. at 930). The evidence provided by Hinton and
Masten explains Woodbury’s motivation in opposing the
clericals’ efforts to obtain representation. I turn now to the
specific allegations of the complaint, keeping in mind the
compelling background conclusions cited above.
2. Alleged violations of the Act
a. Did Respondent orally promulgate a rule prohibiting
employees from discussing wages, hours, and other
terms and conditions of employment?
Section 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), prohibits
employer conduct that ‘‘interferes with, restrains, or coerces
employees’’ in the exercise of their rights under Section 7
of the Act, 29 U.S.C. § 157. Section 7 guarantees employees
‘‘the right to self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives
of their own choosing, and to engage in other activities for
the purpose of collective bargaining.’’
Respondent is charged here and in subsequent allegations
with violating Section 8(a)(1) of the Act. If Respondent an-
nounced a rule restricting employees from discussing wages,
hours, and other terms and conditions of employment, there
is a violation of Section 8(a)(1) of the Act. Jeanette Corp.,
217 NLRB 653, 656 (1975), enfd. 532 F.2d 916 (3d Cir.
1976); Super One Foods #601, 294 NLRB 462 (1989); Serv-
ice Merchandise Co., 299 NLRB 1125 (1990).
I have found in the facts that on November 7, Shull was
admonished by Woodbury for sending a letter to the execu-
tive board. In the course of that conversation, Woodbury
threatened to terminate Shull if she discussed any personnel
matters or complaints with anyone other than himself, Rog-
ers, or Stegall. I find this statement to Shull violated Section
8(a)(1) of the Act. In Kinder-Care Learning Centers, 299
NLRB 1171 (1990), the Board stated:
Under Section 7 of the Act, employees have the right
to engage in activities for their ‘‘mutual aid or protec-
tion,’’ including communicating regarding their terms
and conditions of employment.3 It is well established
that employees do not lose the protection of the Act if
their communications are related to an ongoing labor
dispute and are not so disloyal, reckless, or maliciously
untrue4 as to constitute, for example, ‘‘a disparagement
or vilification of the employer’s product or reputa-
tion.’’5 For example, the Board has found employees’
communications about their working conditions to be
protected when directed to other employees,6 an em-
ployer’s customers,7 its advertisers,8 its parent com-
pany,9 a news reporter,10 and the public in general.11
3 See Eastex, Inc. v. NLRB, 437 U.S. 556 (1978).
4 Cf. NLRB v. Electrical Workers IBEW Local 1229 (Jefferson
Standard), 346 U.S. 464 (1953).
5 See Sahara Datsun, 278 NLRB 1044, 1046 (1986), enfd. 811 F.2d
1317 (9th Cir. 1987), quoting Allied Aviation Service Co. of New Jer-
sey, 248 NLRB 229, 230 (1980), enfd. 636 F.2d 1210 (3d Cir. 1980).
6 In addition to Waco, Inc., 273 NLRB 746 (1984), cited by the
judge, see also Heck’s, Inc., 293 NLRB No. 132, slip op. at 23 (May
18, 1989), and Scientific-Atlanta, Inc., 278 NLRB 622, 625 (1986).
7 Greenwood Trucking, Inc., 283 NLRB 789 (1987).
8 Sacramento Union, 291 NLRB No. 83 (Oct. 31, 1988), enfd. 899
F.2d 210 (9th Cir. 1989).
9 Oakes Machine Corp., 288 NLRB 456 (1988), enfd. 897 F.2d 84
(2d Cir. 1990); Mitchell Manuals, Inc., 280 NLRB 230, 232 fn. 7
(1986).
10 Auto Workers Local 980, 280 NLRB l378 (1986), enfd. 819 F.2d
1134 (3d Cir. 1987); Roure Bertrand Dupont, Inc., 271 NLRB 443
(1984).
11 Cincinnati Suburban Press, 289 NLRB No. 127 (July 20, 1988).
Even if Woodbury’s statements to Shull are interpreted as
meaning only that Shull should first take any work related
complaint to Woodbury, to Stegall or to Rogers, the state-
ment is a violation of the Act because it tends to inhibit em-
ployees from banding together by requiring that, in each such
case, an employee must approach Respondent’s officers be-
fore invoking the assistance of a union and perhaps even be-
fore discussing the issue with other employees. Kinder-Care
Learning Centers, supra.12
Respondent contends in its brief that Woodbury’s con-
versation was a reasonable attempt to prevent Shull from in-
volving Respondent’s executive board in internal office per-
sonnel issues. However, so long as the concerted activity is
not unlawful, violent, in breach of contract or disloyal, em-
ployees engaged in such concerted activity generally do not
lose the protective mantle of the Act, simply because their
activity contravenes an employer’s rule or policies. Louisiana
Council No. 17, 250 NLRB 880, 882 (1980). Since Shull’s
letter does not fall within any category listed above, Re-
spondent’s attempt to restrict her protected activity must fail.
b. Did Respondent threaten Cole with the withdrawal of
aid in returning to her former employer, with whom
Respondent has a collective-bargaining agreement, if
Cole engaged in protected concerted activities?
I have found in the facts above that on or about November
22, Woodbury threatened Cole with withholding efforts to
secure her old job back at PacBell. The basis for this threat
was related to Cole’s desire to be represented by a union.
Thinly veiled or vague threats to an employee with respect
to their union activities violate Section 8(a)(1) of the Act and
I so find. APA Transport Corp., 285 NLRB 928, 931 (1987);
Waterbed World, 286 NLRB 425, 427 (1987).
c. Did Respondent threaten its employees with a layoff
if employees engaged in union and/or protected
concerted activity?
After both Cole and Shull signed union authorization
cards, Woodbury told Cole on November 29, that she would
have to be returned to the unit and then she or Shull would
be subject to layoff when Woodbury hired a new office man-
ager. As I have found that Cole was never a statutory super-
visor in the first place, and therefore never left the unit,
Woodbury’s threat to return her to the unit where she was
subject to layoff violated Section 8(a)(1) of the Act, as it was
based on Cole’s union activities. See Horton Automatics, 289
NLRB 405 (1988).
273COMMUNICATIONS WORKERS OF AMERICA LOCAL 9509
13 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
d. Did Respondent threaten Cole with a change in
wages if she continued to engage in union activities?
As part of the conversation referred to above on November
29, Woodbury also told Cole that if she returned to the unit,
he wasn’t certain if her salary would be affected. The im-
plied statement that Cole’s salary increase when she purport-
edly became office manager, was then in jeopardy violated
Section 8(a)(1) of the Act. Dura-Vent Corp., 257 NLRB 430,
432 (1981).
e. Did Respondent threaten Cole with discharge
because of her union activities?
On December 7, Woodbury called Cole into his office and
told her she had been making some mistakes, so she should
be more careful. On cross-examination, Cole admitted that
she had been making some mistakes (Tr. at 418). Woodbury
also told Cole he’d hate to lose her so she should take it
easy. Then he added that a lot of people’s personalities were
changing. Woodbury concluded by saying that he still in-
tended to help her return to her old job at PacBell.
I will recommend that this allegation be dismissed. There
is no evidence that Woodbury’s admonition was tied to
Cole’s union activities and Woodbury reiterated his intent to
help her return to her former job. I also find no evidence that
Cole’s mistakes had been tolerated prior to her union activi-
ties, thus raising an inference that this oral reprimand was
caused by the union activities. For example, the record
shows Cole had an attendance problem of long standing,
which was tolerated both before and after her union activities
began.
In conclusion, I note that except for the final allegation,
I have found violations in all others. To the extent Respond-
ent contends that Cole and Shull were merely being dis-
ciplined for their allegedly unprotected participation in inter-
nal union politics, I note the Board has rejected such a de-
fense where the evidence does not support the defense. See
Louisiana Council No. 17, supra, at 880. So too, do I reject
the contention here, as I find that both Cole and Shull were
engaged in protected concerted activities at all times material
to this case.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Respondent violated Section 8(a)(1) of the Act in
the following particulars:
(a) By promulgating a rule forbidding its employees from
discussing any personnel matters with anyone other than des-
ignated officials of the union;
(b) By threatening an employee with withdrawal of aid in
assisting an employee to return to her former employment
because of the employee’s protected concerted activities;
(c) By threatening an employee with a layoff because of
the employee’s protected concerted activities; and
(d) By threatening an employee with a change in wages
because of the employee’s protected concerted activities.
3. Other than found above, Respondent has committed no
other unfair labor practices.
4. The above unfair labor practices are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6)
and (7) of the Act.
REMEDY
Having found that Respondent has violated the Act by en-
gaging in certain unfair labor practices, I shall recommend
that Respondent be ordered to cease and desist and to take
certain affirmative actions designed to effectuate the pur-
poses of the Act.
ORDER
The Respondent, Communications Workers of America,
AFL–CIO, Local 9509, San Diego, California, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Promulgating, maintaining and enforcing its unlawful
rule prohibiting employees from discussing personnel matters
with anyone other than designated officials of the union.
(b) Threatening employees, with withdrawal of aid in as-
sisting an employee to return to her former employment be-
cause of the employee’s protected concerted activities.
(c) Threatening employees, with a layoff because of the
employee’s protected concerted activities.
(d) Threatening employees, with a change in wages be-
cause of the employee’s protected concerted activities.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Immediately rescind the rule against employees dis-
cussing personnel matters with anyone other than designated
union officials.
(b) Post at its San Diego, California facility the attached
notice marked ‘‘Appendix.’’13 Copies of the notice, on forms
provided by the Regional Director for Region 21 after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in a conspicuous place
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that
the notice is not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT promulgate, maintain, or enforce a rule pro-
hibiting you from discussing personnel matters or other terms
or conditions of employment with anyone other than des-
ignated officials of the Union.
WE WILL NOT threaten employees, with withdrawal of aid
in assisting an employee to return to her former employment
because of the employee’s protected concerted activities.
WE WILL NOT threaten employees, with a lay-off because
of the employee’s protected concerted activities.
WE WILL NOT threaten employees, with a change in wages
because of the employee’s protected concerted activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of rights guaranteed
you by Section 7 of the Act.
WE WILL rescind our rule prohibiting employees from dis-
cussing personnel matters with anyone other than designated
officials of the Union.
COMMUNICATIONS WORKERS OF AMERICA,
AFL–CIO, LOCAL 9509