Communications Wkrs. Local 5500

National Labor Relations Board - Board Decisions

Dec 30, 1970

187 N.L.R.B. 553 (N.L.R.B. 1970)

COMMUNICATIONS WKRS . LOCAL 5550 553
Communications Workers of America and its Local
5550 (American Telephone and Telegraph Compa-
ny) and John D. Bandow . Case 30-CB-250
December 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 13, 1969, Trial Examiner Eugene E.
Dixon issued his Decision in the above-entitled
proceeding, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision together with a supporting
brief, and the General Counsel filed cross-exceptions
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
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent consistent herewith.
The Trial Examiner found that the Respondent
violated Section 8(b)(1)(A) of the Act by imposing a
fine upon John Bandow for crossing and working
behind its picket line without first having warned him
that he could be fined for so doing. The Respondent
contends, inter alia, that the complaint is barred by
the time limitations of Section 10(b) of the Act. For
the reasons set forth below, we agree with the
Respondent.
John Bandow, a member of the Respondent,
crossed and worked behind the Respondent's lawful
picket line from April 18, 1968, until its removal on
May 6, 1968. On May 29, the Respondent notified
Bandow by letter that he was charged with violating
its constitution and that a date had been set for a
hearing. On July 9, 1968, the Respondent's trial court
convened, found that Bandow had violated the
constitution, and imposed a fine. On October 9, 1968,
the Respondent instituted an action in the county
court to collect the fine. On November 13, a default
judgment was entered against Bandow and , by check
of December 10, 1968 , he paid it . Bandow filed
charges on February 6, 1969 , and March 3, 1969.
The Respondent contends that Section 10(b) of the
Act is a bar to the complaint because more than 6
months elapsed between the imposition of the fine on
July 9, 1968, and the filing of the charge on February
6, 1969 . The Trial Examiner rejected this defense on
the theory that the complaint alleged a continuing
pattern of restraint and coercion , elements of which
were the institution of suit , the obtaining of a
judgment and Bandow 's satisfaction thereof, all of
which occurred less than 6 months before the charge
was filed.
After the Trial Examiner 's Decision was issued, we
considered the application of Section 10(b) in similar
circumstances in International Association of Machin-
ists and Aerospace Workers, AFL-CIO (Union Carbide
Corporation), 180 NLRB No. 135, reaffirmed 186
NLRB No. 138. In that case , the fines were imposed
on November 28, 1967 ; an action to recover them was
brought on May 21, 1968 ; and the charge was filed on
June 21 , 1968. The General Counsel contended that,
although the fines were imposed outside of the 10(b)
period , the Union 's institution of suit within that
period constituted a continuing violation not barred
by Section 10(b).
In rejecting this theory and finding the complaint to
be timebarred , we noted that the institution of legal
proceedings to collect the fines is not unlawful in
itself , but that such a suit can constitute a violation
only if it is found that the original fines were illegally
imposed . Because it would be necessary to find that
conduct engaged in during the pre-10 (b) period
violated the Act in order to hold that the later conduct
was unlawful , we dismissed the complaint.
In the instant case , the charge was filed on February
6, 1969, more than 6 months after imposition of the
fine on July 9, 1968 . We reject the contention that the
Respondent 's institution of legal proceedings to
collect the fines within the 10(b) period establishes a
continuing violation because , as was the case in
International Association of Machinists , supra, "all of
the operative facts necessary to make out the claimed
violation occurred more than 6 months prior to the
filing of the charges ." In these circumstances, we must
dismiss the complaint.'
CONCLUSION OF LAW
Because the complaint in the instant case is based
upon an alleged unfair labor practice which took
place more than 6 months prior to the filing of the
charge with the Board, the complaint must be
dismissed pursuant to Section 10(b) of the Act.
I Consequently, we do not pass upon any of the other issues in this case
187 NLRB No. 72
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed in its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE E. DIXON, Trial Examiner: 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 Stevens Point, Wisconsin, on June 24,
1969, pursuant to due notice. The complaint, issued by the
representative of the General Counsel for the National
Labor Relations Board (herein called the General Counsel
and the Board) and based on a charge and first amended
charge filed by John D. Bandow (herein called Bandow or
Charging Party) an individual, on February 6 and March 3,
1969 respectively, alleged that Communications Workers of
America and its Local 5550 (herein called the Union or
Respondent) had engaged in an unfair labor practice in
violation of Section 8(b)(1)(A) of the Act.
Specifically, the complaint alleged that since on or about
July 9, 1968, the Respondent, by imposing an excessive fine
of $400 plus trial costs on the said Bandow, had restrained
and coerced the Charging Party in the exercise of rights
guaranteed in Section 7 of the Act, and thereby engaged in
and are engaging in unfair labor practices as defined in
Section 8(b)(l)(A) of the Act, affecting "commerce" as
defined in Section 2(6) of the Act.
Upon the entire record in the case (including considera-
tion from the briefs received from the General Counsel and
Respondent) and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
American Telephone and Telegraph Company is a
Delaware corporation engaged in the sale of telephone
service at various locations throughout the United States of
America, including its Long Line Division facility in
Stevens Point, Wisconsin, the only facility involved herein.
During the past calendar or fiscal year, either being a
representative period, AT & T's gross volume of business
was in excess of $100,000 and it purchased and received
goods, in interstate commerce, valued in excess of $50,000.
I find that AT & T is and has been engaged in
"commerce" and in operations "affecting commerce" as
defined in Section 2(6) and (7) of the Act.
II. THE RESPONDENT AS A LABOR ORGANIZATION
Respondent, Communication Workers of America, Local
i Article IXX, Section 1 of the Union's constitution provides in part as
follows
Members may be fined, suspended or expelled by Locals in the
manner provided in the constitution for any of the following acts
s • • • s
(e) Working without proper union authorization, during the period of
a properly approved strike in or for an establishmentswhich is being
5550, is admitted to be a labor organization within the
meaning of Section 2(5) of the Act, and I so find.
III. THE UNFAIR LABOR PRACTICES
The material facts are not disputed. John D. Bandow was
employed by the American Telephone and Telegraph
Company, Long Lines Division at Stevens Point, Wisconsin
in "maintenance and operation of electronic switching
system." Bandow joined Respondent Union in September
1967 and was a member thereof on April 18, 1968, the date
upon which the Union began a lawful and union authorized
strike against AT & T at its Stevens Point facility. John
Zelhofer, vice president of Local 5550, informed Bandow of
the strike scheduled to begin at 2 p.m. on the 18th and
"explained to him that he was a new member, that it would
be to his advantage if he were to honor this picket line
rather than cross the picket line." Zelhofer did not say
anything to Bandow about the possibility of being fined if
he cross the picket line much less about the possibility of
any court enforcement of such a fine. Notwithstanding
Zelhofer's plea Bandow did not honor the Union's picket
line but continued to work during the entire period of the
strike which lasted until May 6.
Although the Union's constitution makes provision for
penalizing a member for crossing its duly established picket
]mes,i according to Bandow's undenied and credited
testimony he was never given a copy of the union
constitution prior to the strike. Indeed, it was not until after
the strike terminated that Bandow had any information
that he might be subject to union censure of any kind,2
particularly any kind involving "financial consequences"
for his failure to join his fellow union members in the
strike.
In this context on May 7, 1968, at a meeting of the
Union's executive board the following action was ap-
proved:
MOTION to charge any person who crossed picket
lines and worked during the strike with violation of
Article 19 of the CWA constitution. A registered letter
is to be sent notifying any person so charged. Motion
approved.
RECOMMENDED that the minimum fine imposed on
any person found guilty of violating Section 19 of the
CWA constitution be wages earned during the strike
and suspension from the local.
TRIAL COURT selected the following [sic] person's for
trial court duty from a list of qualified members. They
are: Chairman, Sherri Andregg, Madison; Prosecutor,
James R. Smith, Milwaukee; (sic) Juror's, Joseph
Werner Appleton; Fred Heyman Milwaukee; and Paul
B. Sobieck, Jr. Madison. President Quigley was
instructed to set up a meeting as soon as possible with
the Trial court chairman and Mr. Ed Pell, Wisconsin
struck by the union or local
In addition the constitution sets forth in detail the procedure for disposing
of charges against members including provisions for protection of their
rights
2 The only such intimation he received during the strike was from
individual pickets who indicated to him that "if [he] worked they were
going to get [him ] "
COMMUNICATIONS WKRS . LOCAL 5550 555
State Director to find out the proper procedure for
holding a trial.
On May 29 Bandow was notified by letter of the charges
against him and the date of his hearing at which he was
assured the right to be heard on his own behalf; "the right
to select a member of the local as counsel, the right to
produce witnesses, present documentary evidence and .. .
the opportunity to cross-examine witnesses." The letter also
indicated that if he required more time to prepare his
defense a reasonable continuance could be arranged.
Bandow took no action whatsoever with respect to this
matter and on July 9, 1968, the union trial court convened
and found Bandow guilty of violating article XIX of the
CWA constitution and imposed a penalty of $400 which
included salary earned during the strike, plus union trial
costs, and recommended that he be suspended from the
Union until such time as he could be reinstated as a
member in good standing.3
Having received no payment of its fine or any
communication about it from Bandow, on October 9 the
Union began an action against Bandow in the county court
for $400 plus costs. On November 13 a default judgment
was entered against Bandow in the amount of $433.33. On
December 5 a garnishment action was commenced against
Bandow and on December 13 through his attorney Bandow
made payment of the $444 to the Union.
Contentions and Conclusions
In its defense Respondent raises four questions: (1)
Whether or not the complaint is barred by the 6-month
limitation set forth in Section 10(b) of the Act; 4 (2) whether
the Board has jurisdiction over the subject matter of the
complaint; (3) whether the judgment of Portage County
Court renders moot any subsequent Board proceeding; and
(4) whether the fine in question was reasonable. Only one
and four need any comment.
Respondent contends that the issuance of the complaint
violates Section 10(b) of the Act because more than 6
months elapsed between the filing of the original charge on
February 6, 1969, and the imposition of the fine on July 9,
1968. In this connection Respondent's position is that the
General Counsel did not allege the collection of the fine (as
distinguished from the imposition of the fine) as an unfair
labor practice and that no "continuing restraint or coercion
was . . . proved" as a result of the "imposition" of the fine.
Respondent reads the complaint too narrowly and
technically and in addition misconstrues the facts. Not only
did the General Counsel allege the imposition of the fine in
the complaint but he also alleged in the same paragraph the
obtaining of the judgment on it by the Union on November
13 and the satisfaction of the judgment on December 10 by
the Charging Party. Moreover, he also alleged in the
complaint that all of the foregoing conduct (which in fact
occurred) amounted to continued restraint and coercion
3 The court (which deliberated on Bandow's case almost the entire day)
estimated his earnings to be from $225 to $250. Actually Bandow's
earnings during the strike were $299.94. The trial costs were $182.93
consisting of $20 for transportation , $ 11 in meals , $ 139.60 in lost wages and
$12.33 for room rental.
4 Section 10(b) states in part: "... IN ]o complaint shall issue based
against the charging party in violation of Section 8(b)(1)(A)
of the Act. Respondent's 10(b) defense is rejected.5
Both the Respondent Union and the General Counsel
rely on the Supreme Court decision in Allis-Chalmers
Manufacturing Company, 388 U.S. 182, to support their
conflicting contentions. The General Counsel, while
admitting that the court in that case held "that a reasonable
fine of a member to require support of a union's strike is not
violative of Section 8(b)(1)(A)," maintains nevertheless that
the fine here exceeds the reasonable limits permitted in
Allis-Chalmers and is thus outside the reach of that
decision. Although refusing to say what would be a
reasonable fine in the circumstances of this case, the
General Counsel contends that "the fine herein was clearly
excessive and violative of Section 8(b)(1)(A) of the Act" for
the following reasons:
(1) That the fine exceeded both Bandow's strike
earnings or normal earnings for a comparable period;
(2) That Bandow was not warned, either prior to or
during the strike, of the possibility of being fined for
crossing the picket line;
(3) That Bandow did not perform any work during the
strike that would have been performed by his fellow
employees-who respected the picket line-but for the
strike;
(4) The absence of any circumstances that even
arguable might justify the imposition of so large a fine.
The Allis-Chalmers opinion has already been the main
subject of discussion in four Trial Examiner's Decisions
now pending before the Board. These decisions are Local
205, Lithographers and Photoengravers International Union,
AFL-CIO (the General Gravure Service Co., Inc.), Case
22-CB-1273, issued on July 22, 1968, by Trial Examiner
Herbert Silberman; Booster Lodge No. 405, International
Association of Machinists and Aerospace Workers, AFL-CIO
(the Boeing Company), Case No. 15-CB-779, issued on
December 30, 1968, by Trial Examiner Ramey Donovan;
Communication Workers of America, Local 6222 (John H.
Reinbold, an Individual), Case 23-CB-888, issued on May
12, 1969, by Trial Examiner James T. Barker; and
Communication Workers of America; Local 6135 (Judith
Gullion, et al.), Cases 23-CB-898, 899-2, 897-3, issued on
May 12, 1969, by Trial Examiner James T. Barker.
In his Boeing Company decision, Trial Examiner
Donovan concluded after a lengthy and detailed analysis of
the Court decision that on the basis of it a definitive
standard could and should be adopted for determining the
reasonable limits within which a union could fine its
members for continuing to work during a lawful strike. To
this end he wrote as follows:
It is the Examiner's opinion that a fine of 35 percent or
less of a strikebreaker' s earnings at his regular straight
time rate is, presumptively, a reasonable fine . We also
believe that a fine of 80 percent or less of overtime or
premium pay, earned by a strikebreaker, which he
would not normally have earned but for the fact that his
upon any unfair labor practice occurring more than six months prior to the
filing of the charge with the Board... .
5 See Local 248, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO et al. (Allis-Chalmers
Manufacturing Company), 149 NLRB 67, 76.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fellow union members were engaged in an authorized
strike, presumptively, is a reasonable fine. We believe
that a total fine embracing some earnings at the 35
percent or less rate and some earnings at the 80 percent
or less rate is, presumptively, a reasonable fine.
As another prerequisite Trial Examiner Donovan also
would include in his defmitive standards of reasonableness
under the Allis-Chalmers decision the requirement "that a
reasonable fine entails an antecedent warning that fines will
be imposed for working during the particular strike."
While I have no opinion as to the validity of Trial
Examiner Donovan's formula as a whole,6 I am convinced
that the standards of reasonableness referred to by the
Court in the Allis-Chalmers decision encompass Donovan's
suggested requirement that notice be given by a union
before it can legally fine the members for crossing its own
picket lines and working during its lawfully called strikes.
Here Bandow was given no such warning. This failure on
the Union's part, in my opinion, takes its fine of Bandow
out of the protective reach of Allis-Chalmers and puts the
union in violation of Section 8(b)(1)(A) of the Act. This I
find notwithstanding that in all other procedural respects
the Union's conduct was exemplary and without fault. And
this result in my opinion would also obtain even if it be
determined that the Union's fine of Bandow was reasona-
ble in amount-a matter I find it unnecessary to decide.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
American Telephone and Telegraph Company including its
Long Line Division facility in Stevens Point, Wisconsin,
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(IXA) of the Act,
I shall recommend that it cease and desist therefrom and
that it take certain affirmative action which is necessary to
effectuate the policies of the Act.
Having found that Respondent Union imposed and
collected a fine against John D. Bandow for working
behind its picket lines during a legally established union
strike without having given him adequate warning or notice
that such action would be taken against him, thus coercing
him and interfering with his rights guaranteed by Section 7
of the Act, I shall recommend that his fine be withdrawn
and rescinded and that Bandow be reimbursed for the
amount of money he was fined plus interest at the rate of 6
6 Trial Examiner Barker concurred with it with some minor
modification.
7 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
percent per annum as prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Communications Workers of America, Local 5550 is
a labor organization within the meaning of Section 2(5) of
the Act.
2. American Telephone and Telegraph Company
including its Long Line Division facility in Stevens Point,
Wisconsin, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By imposing and collecting a fine of $400 plus costs
(which totalled $433.33) against John D. Bandow for
working behind the picket line at the American Telephone
and Telegraph Company Long Line Division facility in
Stevens Point, Wisconsin, during a duly authorized strike of
the Union, the Union restrained and coerced John D.
Bandow in the exercise of rights guaranteed in Section 7 of
the Act and thereby violated Section 8(b)(l)(A) of the Act.
4. The aforesaid unfair labor practices effect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of facts and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondent, its officers, agents, and
representatives shall:
1. Cease and desist from:
(a) Fining members for working behind a picket line
during a lawful strike authorized by the Union without
giving them adequate warning or notice that such action
will be taken against them for such conduct.
(b) In any like or related manner restraining or coercing
its members in the exercise of rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Withdraw and rescind the fine levied and collected
against John D. Bandow for working from April 18 until
May 6, 1968.
(b) Reimburse John D. Bandow for the amount of money
he was fined plus interest at the rate of 6 percent per
annum.
(c) Correct all pertinent records relating to the trial and
the fine of John D. Bandow to reflect the foregoing
modification and inform him, in writing, of the action
taken.
(d) Post at its office and meeting halls and at the
American Telephone and Telegraph Company Long Line
Division facility in Stevens Point, Wisconsin (the Company
willing), copies of the attached notice and marked
"Appendix." 7 Copies of said notice on forms provided by
findings, conclusions , recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and all
objections thereto shall be deemed waived for all purposes In the event
COMMUNICATIONS WKRS . LOCAL 5550 557
the Regional Director of the National Labor Relations
Board for Region 30, after being signed by an authorized
representative of the Respondent Union, shall be posted in,
conspicuous places, at said locations, including all places
where notices to members and employees are customarily
posted. Reasonable steps shall be taken to ensure that said
notices are not altered, defaced, or covered by other
material.
(e) Notify the Regional Director, in writing, within 20
days of the receipt of this Decision, what steps it has taken
to comply herewith.8
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 "
8 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 30, in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that:
After a trial in which the Union and the General
Counsel of the National Labor Relations Board were
represented by attorneys, a Trial Examiner of the
Board, who heard the evidence, has found that we have
violated the National Labor Relations Act in certain
respects, and has recommended that we post this notice
and comply with its terms.
WE WILL NOT restrain or coerce employee members
of our Union in the exercise of their rights guaranteed in
Section 7 of the Act to refrain from engaging in union
activities, such as a strike, by imposing and collecting
fines against them for such conduct without giving them
adequate notice or warning that such action will be
taken against them for such conduct.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaranteed
them in Section 7 of the National Labor Relations Act.
WE WILL withdraw and rescind the fine we imposed
and collected against John D. Bandow for working
from April 18 to May 6, 1968, during our strike against
the American Telephone and Telegraph Company
Long Lines Division, Stevens Point, Wisconsin.
WE WILL correct the records of the July 9, 1968,
union trial of John D. Bandow and correct other union
records to show that the fine has been withdrawn and
rescinded and will notify Bandow of such action in
writing.
WE WILL also reimburse John D. Bandow for the full
amount of the fine and costs which he paid together
with interest at 6 percent per annum.
Dated By
COMMUNICATIONS WORKERS
OF AMERICA, LOCAL 5550
(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 concerning this notice or compliance with
its provisions may be directed to the Board's Office, 2nd
Floor Commerce Building , 744 North Fourth Street,
Milwaukee, Wisconsin 53203, Telephone 414-272-3861.