Loc. 1197, Communications Workers

National Labor Relations Board - Board Decisions

Mar 6, 1973

202 N.L.R.B. 229 (N.L.R.B. 1973)

LOC. 1197, COMMUNICATIONS WORKERS
Local 1197 , Communications Workers of America,
AFL-CIO (Western Electric Company , Inc.) and
Paul Sayko, Jr. Case 3-CB-1902
March 6, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On November 2, 1972, Administrative Law Judge
Irving M. Herman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Local 1197, Commu-
nications Workers of America, AFL-CIO, Syracuse,
New York, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
case was tried" before me at Syracuse, New York, on
September 12, 1972. The charge was filed by Paul Sayko,
Jr., an individual, on June 30, 1972, and the complaint
issued August 8. The primary issue is whether Respon-
dent's disciplining of certain of its members, employees of
Western Electric Company (the Employer), for crossing a
picket line of a sister local violated Section 8(b)(1)(A) of
the National Labor Relations Act, as amended (29 U.S.C.,
Sec. 151, et seq. ), herein called the Act.
Upon the entire record,' and after due consideration of
the briefs filed in behalf of the General Counsel and the
Respondent, I make the following:
On October 16, 1 issued an Order to Show Cause (which is hereby
received in the record as ALJ Exh. I) why the transcript of the hearing
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE EMPLOYER
229
The complaint alleges, the answer admits, and I find that
the Employer is a New York corporation, maintaining
manufacturing plants and other facilities in various States,
including a service facility in Syracuse, New York, where it
is engaged in the repair, distribution and installation of
telephone communication equipment; that during the past
year the Employer's purchases and deliveries directly from
other States exceeded the value of $1 million; and that the
Employer is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
11. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
Respondent is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
The basic facts are not in dispute. Following a brief work
stoppage over renewal of the national agreement between
the Employer and Respondent's parent Internation
(CWA), the employees represented by Respondent (some
500) returned to work when a settlement was reached in
mid-July 1971. A few days later, however, on July 23, said
employees again failed to report for work and remained
out until February 17, 1972, observing a picket line
established by Local 1123 of the same International against
New York Telephone Company which occupies space at
the same location leased to it by the Employer.
The Employer's contract with CWA, admittedly binding
on Respondent throughout the period of the strike,
contains the following no-strike clause:
ARTICLE 40
• MAINTENANCE OF WORK OPERATIONS
1. There shall be no lockouts, strikes, work stoppages
or slowdowns during the life of this Agreement. No
officer or agent of the Union or the Company shall
authorize, instigate or condone any such activity. No
employee shall participate in any such activity. The
Company shall have the right to take disciplinary
action, other than termination of employment, against
any employee participating in a violation of the
foregoing. The Company, upon written- notice to the
Union, shall have the right to suspend or terminate the
provisions of Article 26-Union Security, and Article
27-Payroll Deduction of Union Dues, with respect to
any or all Locals in the event of a violation of the
should not be corrected in certain respects. No good cause to the contrary
having been shown, such corrections are hereby ordered made.
202 NLRB No. 45
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
foregoing by a Union Officer or Representative unless
prompt and effective corrective action is taken.2
In the course of this 7-month strike the Employer had
several meetings with Respondent's president, Joseph
Blair , and informed Blair that it considered observance of
Local 1123's picket line to be in violation of the no-strike
clause in article 40. Blair took the position that the contract
did not preclude Respondent's cessation of work because it
was not the striking local and the CWA constitution
forbade members of one local to cross the picket line of
another local.3 Blair testified without contradiction that on
three occasions (1957, 1968, and 1969) Respondent-repre-
sented employees of the Employer honored the picket lines
of varying duration of sister locals with no reprisal by the
Employer, while a 1-day stoppage conducted by Respon-
dent itself in 1969 resulted in a 2-month suspension of the
dues checkoff pursuant to article 40 of the contract. Blair
further testified without contradiction that the Employer
took no reprisal action against those employees who
observed the instant picket line maintained by Local 1123.
At some time during this strike a number of employees
who belonged to Respondent crossed the picket line to
return to work. Internal union disciplinary proceedings
were instituted therefore against the four employees named
in the instant charge, Paul Sayko, Jr., Walter Penwarden,
Joseph F. Bach, and Donald D. Michaels. They received
notice thereof by letter dated November 26, 1971. On
March 15, 1972, the cases were noticed for trial March 27.
The employees did not appear, and on June 21 the cases
were rescheduled for June 26, on which date the individu-
als were tried in absentia.4 They were convicted, fined
various amounts,5 and expelled from the Union .6
Subsequent to the institution of the intraunion proceed-
ings but prior to the trials and convictions, Respondent
received certain communications from the International
concerning such proceedings. As early as December 10,
1971, Vice President Morton Bahr dispatched a memoran-
dum to the presidents of all sales and installation locals of
CWA noting the Employer's circulation of "an NLRB
decision which stated that a local union respecting the lines
of a sister local could not impose fines on a member who
went to work if the contract covering that worker
contained a no-strike clause," and quoting the Internation-
al's general counsel, Koons, as follows:
Since Sales and Installation contracts contain no-strike
clauses, Locals of these bargaining units would fall
within the prohibition of the above ruling. The fining or
threatening to fine members who cross picket lines to
work would constitute unfair labor practices.
Respondent nevertheless proceeded with its cases, as set
forth above, and on March 22, 1972, National Director F.
J. Novotny wrote to Respondent President Blair and to the
2 The identical clause appeared in all prior contracts between the parties
at least since 1952
3 The constitutional provision so relied on specifies the following
conduct as one of numerous offenses listed in art XIX, sec 1 , for which
members may be fined, suspended or expelled, °(e) Working without proper
Union authorization, during the period of a properly approved strike in or
for an establishment which is being struck by the Union or local "
4 These were the only members actually tried by Respondent, although
58 other members of the unit have been charged with similar violations of
art XIX of the CWA constitution
5 The amounts ranged from $2,025 to $2,502, the formula being the
presidents of three other locals, informing them that in
accordance with his previous letter of March 77 this matter
had been referred to International President Beirne and
General Counsel Koons, and that he had since been
advised by Koons that any fines or threats on the premises
would violate the Act. And, reminding the addressees of
Vice President Bahr's prior memorandum, Novotny
concluded:
Therefore, in view of the above advice received from
Legal Counsel Koons, I am directing you to cease and/
or retract any action connected with the fining or
suspensions of members in the Sales Unit, who crossed
Picket Lines during the New York Telephone Strike.
As noted above, Respondent ignored this explicit directive.
B. Analysis
The above facts clearly establish Respondent's imposi-
tion of severe disciplinary measures against certain of its
members to compel their adherence to its policy of
honoring Local 1123's picket line. In light of the broad
strike prohibition in article 40 of the contract with the
Employer, such conduct on its face runs afoul of the
Board's National Grinding Wheel doctrine.8 Respondent
argues, however, first, that National Grinding is bad law
(though it disclaims any attempt to persuade me, as
distinguished from the Board, to upset Board precedent);
and, second, that the instant case is distinguishable from
National Grinding despite the breadth of the prohibitory
language (which it concedes to be no less proscriptive than
that in National Grinding) because the same section of
article 40 goes on to provide for action by the Employer in
the event of a violation, and the Employer's inaction both
during the instant strike and historically in similar
situations in contrast to its action in response to Respon-
dent's own strike in 1969 shows that the prohibition was
not intended to apply to work stoppages resulting from
honoring a sister local's picket line. The argument lacks
merit.
I do not find the Employer's conduct to amount to
anything more than forbearance in situations where its
underlying quarrel was with another union. The weakness
in Respondent's position is perhaps best demonstrated by
its reliance on the the Employer's steadfast position,
enunciated repeatedly, that Employer's inaction during the
instant strike. In the face of this strike was a breach of
article 40 , it defies reason to attribute its failure to apply
the sanctions provided by that article to an acquiescence in
the opposite position. Significantly, article 35 of the
contract provides:
hourly rate from the individual 's return to work until the termination of the
strike, less $100 per week , an amount assumed as New York State
unemployment benefits at $75 per week plus $25 strike benefits payable
from the CWA defense fund
6 Respondent , noting that the employees did not invoke the appellate
procedures provided by the CWA constitution, makes no argument based
thereon
r Not in the record
8 Local 12419, Dist 50, United Mine Workers (National Grinding Wheel
Co), 176 NLRB 628
LOC. 1197, COMMUNICATIONS WORKERS 231
INTERPRETATIONS
Interpretations of the provisions of this agreement
mutually agreed upon by the Company and the
International shall be reduced to writing and signed by
the authorized representatives of both parties.
As already noted, not only has the Employer never agreed
either in writing or orally to any interpretation of article 40
at odds with its plain language,9 but the International (the
contracting party as well as the recognized exclusive
bargaining representative) shares the Employer's view as to
the meaning of the contract and indeed so advised
Respondent repeatedly.10
I accordingly find that Respondent violated Section
8(b)(1)(A) of the Act by levying fines against, and expelling
from membership, the four employees named in the charge
and by filing intraunion charges against 58 other employ-
ee-members,11 in order to force adherence to Respondent's
policy of honoring a sister local's picket line contrary to the
clear language of the contract. Local 12419, United Mine
Workers (National Grinding Wheel Co.), supra.
A final point "suggest[ed]" but not argued by Respon-
dent deserves mention, i.e., the applicability of Collyer
Insulated Wire, 192 NLRB No. 150. The grievance-arbitra-
tion procedures provided by the contract read, in pertinent
part:
ARTICLE 6
GRIEVANCE PROCEDURE
1. To provide for the expeditious and mutually
satisfactory settlement of questions arising with respect
to wages, hours of work and other conditions of
employment, the procedures hereinafter set forth shall
be followed:
2. The International delegates to each of its Locals at
the Company's Service Centers the right to discuss all
grievances initiated by the employees who are within
the respective jurisdiction of the Locals.
3. Any employee or group of employees having a
grievance may, within sixty (60) days following the date
of the alleged unjust action, have a Local Representa-
tive take up the matter with Local Management during
normal working hours. Ordinarily, Local Representa-
tives shall take up grievances first with the employee's
immediate supervisor; however, exceptional cases may
be referred directly to higher levels of Local Manage-
ment. In these exceptional cases at least two (2) Local
Representatives shall be present.
9 The contract language must be deemed to have been entered into with
knowledge of the National Grinding decision which had come down over 2
years earlier
10 Respondent renews in its brief the objection it raised at the hearing to
the admission of the international 's messages transmitting such advice It
argues that
the statements contained in that exhibit are only what they represent to
be, interpretations of the Act in respect to the commission of an unfair
labor practice . . [Tlhe state of Respondent's officers (sic) collective
minds-what they were advised was or was not legal-hardly disposes
of the question presented by this case In other words, the Administra-
tive Law Judge, and subsequently the Board, will determine whether
there was a violation based upon this record, and not based upon
another's opinion
3.1 It is recognized that the Local Representatives may
process a grievance on behalf of an employee or group
of employees even though such employees do not
instigate the grievance.
3.2 Local Management will not, during the course of
the grievance procedure, discuss the subject of a
grievance with the employee or employees involved
unless a Local Representative is present. This prohi -
bition shall not apply in the case of grievances initiated
in accordance with Paragraph 12 of this Article unless
and until the employee or employees involved notify
Local Management that the grievance has been
transferred to the Local for processing.
4. When grievances are not settled satisfactorily with
the immediate supervisor or higher levels of Local
Management, the grievance may be referred to the
Local Bargaining Committee.
6. If, after the grievance has been presented to the
Local Bargaining Committee, it is not settled to the
satisfaction of the Local, the Local may transfer
jurisdiction over the grievance to the Master Bargain-
ing Committee. A letter to that effect shall be written
by the Local to the Bargaining Agent of Local
Management. The Local and Local Management shall
thereupon prepare, sign and exchange separate state-
ments containing matters each considers pertinent to
the proper consideration of the grievance, including but
not necessarily limited to the following:
(a) Exact nature of the grievance, and specific
adjustment desired by the Local.
s s * s s
9. Neither the Company nor the International shall
advance any argument or evidence not contained in the
statement prepared and signed by the Local and Local
Management, as provided for in Paragraphs 6 and 7 of
this article.
s s * s s
10. The Company shall render its decision in writing
within ten (10) days after the Signing Representative
has given the Bargaining Agent notice that the
International's presentation has been completed.
s s * a a
12. Nothing contained in this Agreement shall de-
The objection is again denied it misses the point completely The
documents are relevant not as opinions of what constitutes an unfair labor
practice but as declarations by the contracting party that represented
Respondent in the negotiations as to ' the meaning of the clause in question
it is paradoxical for Respondent to rely on equivocal conduct by the
Employer to modify the plain language of the contract while objecting to
the unequivocal interpretation by its own contracting party consonant with
that language
11 Although not alleged in the complaint, the 58 other cases were
stipulated into the record , and the issues are "closely related" if not
identical, those charges evidently being held in abeyance pending the
outcome of the instant case See Lake County, Indiana, Carpenters (Tonn &
Blank, Inc), 182 NLRB 233, In 1, Associated Mills, Inc, 190 NLRB No. 8
(TXD, In 15)
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prive any individual employee or group of employees
of the right at any time to present grievances, ,and to
have such grievances adjusted without the intervention
of a Union Representative, as long as the adjustment is
not inconsistent with the terms of this Agreement. In
these cases, the Local Representative shall be given the
opportunity to be present when final adjustments are
made.. . .
But even if, arguendo, this procedural obstacle were not
deemed insuperable, the case would still not be controlled
by Collyer because as we have seen, "the General Counsel's
interpretation is ...compelled by the language" of the
clause in question (cf. Brotherhood of Teamsters & Auto
Truck Drivers Local No. 70, etc, 198 NLRB No. 4) which,
under article 7, paragraph 2, of the contract, the arbitrator
would "have no authority to alter or modify."
*
ARTICLE 7
ARBITRATION
If the International and the Company fail to settle
by negotiation any differences arising with respect to
the interpretation of this Agreement, or the perform-
ance of any obligation hereunder,
(a) Provided that such dispute is not excluded
from arbitration by other provisions of this
Agreement;
(b) Provided that such dispute does not
involve a case in which the determination of the
matter is within the judgment or discretion of the
Company;
(c) Provided that the grievance procedures as
to such dispute have been exhausted; such
differences shall be referred, upon written de-
mand of either party given not later than sixty
(60) days following the date of final answer in the
grievance procedure, to an impartial Arbitrator
mutually agreeable to both parties.
2. The Arbitrator shall have no authority to alter or
modify the provisions of this Agreement. . . . Any
decision made in compliance with the foregoing shall
be final and the parties agree to abide by such decision.
There are at least two reasons why Collyer is inapplicable
here. The arbitration machinery established under the
foregoing provisions appears to be the culmination of the
grievance procedure which in turn is available to individual
employees only against the Employer, not against their
locals. If the sole obstacle to deferral here were the
diversity of interests between Respondent and the employ-
ees (cf. Kansas Meat Packers, a Division of Aristo Foods,
Inc., 198 NLRB No. 2), that difficulty might be overcome
by the harmony of interests between employees and
employer with the consequent likelihood that the Employer
would adequately represent them (cf. National Radio
Company, 198 NLRB No. 1; International Harvester Co.,
Indianapolis Works, 138 NLRB 923, 928).12 But the more
basic problem here, indicated above, resides in the failure
of the contract to contemplate a grievance on behalf of
employees against their bargaining representative or its
constituents.
12 It is noted, however, that in National Radio, the union, whose interest
was found to coincide with that of the employee, was not only the charging
party but had already instituted a grievance proceeding on his behalf
13 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 OF LAW
1. Western Electric Co., Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
3. By instituting disciplinary proceedings against Paul
Sayko, Jr., Walter Penwarden, Joseph F. Bach, Donald D.
Michaels, and 58 other members of Respondent for
crossing Local 1123's picket line, and by fining and
expelling the aforesaid four named individuals, Respon-
dent has violated Section 8(b)(1)(A) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
In order to remedy the unfair labor practices found
herein, my recommended Order will require Respondent to
cease and desist therefrom and to refrain from any like or
related infringement upon the Section 7 rights of its
members. In order to effectuate the policies of the Act, I
shall also recommend rescission of the fines and expulsions
and the withdrawal of all pending intraunion charges
through the same means of communication employed in
the commission of the unfair labor practices found; as well
as the usual posting of notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following: 13
ORDER
Respondent, Local 1197, Communications Workers of
America, AFL-CIO, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Fining, expelling, or instituting disciplinary proceed-
ings against any of its members for crossing a sister local's
picket line as long as it is bound by the current collective-
bargaining agreement between Communications Workers
of America, AFL-CIO, and Western Electric Company,
Inc., or any other contract containing a provision of like
effect to article 40, paragraph 1, thereof.
(b) In any like or related manner restraining or coercing
its members in the exercise of their rights guaranteed by
Section 7 of the Act.
conclusions and recommended Order herein shall, as provided in Sec
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
LOC. 1197, COMMUNICATIONS WORKERS
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Rescind all fines imposed and all expulsion orders
entered against Paul Sayko, Jr., Walter Penwarden, Joseph
F. Bach, and Donald D. Michaels.
(b) Withdraw all disciplinary proceedings pending
against any member of Respondent for crossing a picket
line established by Local 1123, Communications Workers
of America, AFL-CIO.
(c) Notify all members directly concerned in subpara-
graphs (a) and (b) of this subparagraph 2, through the same
means of communication employed in instituting and
ifnplementing the disciplinary proceedings against them, of
the steps taken to comply herewith.
(d) Post at its offices located at Syracuse, New York, and
at all places where it customarily posts notices to its
members, copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, on forms provided by the
Regional Director for Region 3, after being duly signed by
an authorized representative of Respondent, shall be
posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
its members are customarily posted. Reasonable steps shall
be taken to'insure that said notices are not altered, defaced
or covered by any other material.
(e) Notify the Regional Director in writing, within 20
days from the date of this Order, what steps Respondent
has taken to comply herewith.
14 In the event that the Board's 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 be changed to 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 MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fine, expel, or institute disciplinary
proceedings against any of our members for crossing a
233
sister local's picket line as long as Local 1197 is bound
by the existing collective-bargaining agreement be-
tween CWA and Western Electric Company, Inc., or
any other contract contaming a provision to the same
effect as article 40, paragraph 1, of the existing
agreement.
WE WILL NOT in any like or related manner restrain
or coerce our members in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL rescind all fines imposed and all expulsion
orders entered against Paul Sayko, Jr., Walter Penwar-
den, Joseph F. Bach, and Donald D. Michaels.
WE WILL withdraw all disciplinary proceedings
pending against any of our members for crossing a
picket line established by Local 1123, CWA.
WE WILL notify Paul Sayko, Jr., Walter Penwarden,
Joseph F. Bach, Donald D. Michaels, and all other
members against whom disciplinary proceedings have
been instituted because of their crossing Local 1123's
picket line, in the same way that we notified them of
the institution of those proceedings and of adverse
action taken therein, that we are withdrawing all such
proceedings and rescinding all such adverse action.
Dated By
LOCAL 1197,
COMMUNICATIONS
WORKERS OF AMERICA,
AFL-CIO
(Labor Organization)
(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 concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, 9th Floor, Federal Building,
111 - West Huron Street, Buffalo, New York 14202,
Telephone 716-842-3100.