NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
International Brotherhood of Electrical Workers,
Local 2321, AFL–CIO and Gregory
Burns.
Case 1–CB–10559
July 18, 2007
DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Walsh
On April 11, 2007, Administrative Law Judge Joel P.
Biblowitz issued the attached decision.
The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief
to the Respondent’s exceptions.
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 briefs1 and has decided to affirm the judge’s rulings,
findings, and conclusions and to adopt the recommended Order as modified and
set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, International Brotherhood of Electrical Workers, Local 2321, AFL–CIO,
Lawrence,
1. Cease and desist from
(a) Enforcing an overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods are charged for the overtime hours worked.
(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Rescind the overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods are charged for the overtime hours worked.
(b) Make whole Gregory Burns for the overtime hours that he lost due to the Respondent’s failure to charge employees of Verizon New England for the overtime hours that they refused to work on November 25, 26, and 27, 2005.
(c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at its union office copies of the attached notice marked “Appendix.”3 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient copies of the notice for posting by Verizon New England, if willing, at all places at the Lawrence garage where notices to employees are customarily posted.
(f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
______________________________________
Robert J. Battista, Chairman
______________________________________
Peter C. Schaumber, Member
______________________________________
Dennis P. Walsh, Member
(seal) National
Labor Relations Board
APPENDIX
Notice To Members
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not enforce an overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods are charged for the overtime hours worked.
We will not in any like or related manner restrain or coerce you in the exercise of the rights set forth above.
We will rescind the overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods, are charged for the overtime hours worked.
We
will make whole Gregory Burns for the overtime hours that he lost due to
our failure to charge employees of Verizon at the
International Brotherhood of Electrical Workers,
Local 2321, AFL–CIO
Karen Hickey, Esq., for the General Counsel.
Harold Lichten, Esq. and Maydad Cohen, Esq. (Pyle,
Gregory Burns, Pro
Se.
DECISION
Statement of the Case
Joel P. Biblowitz,
Administrative Law Judge. This case was
heard by Administrative Law Judge Lawrence W. Cullen on February 5, 2007, in
Subsequent to the closing of the hearing Judge Cullen developed
a serious medical condition and is not expected to return to work before July
2007. Administrative Law Judge William
Cates, the Associate Chief Judge in the
Findings of Fact
i.
jurisdiction
Respondent admits, and I find, that the Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
ii. labor
organization status
Respondent admits, and I find, that it has been a labor organization within the meaning of Section 2(5) of the Act.
iii. the facts
The
From at least about November 21, 2005 until at least about
November 27, 2005, with the exception of November 24, 2005, Union members
employed in Verizon’s
In or about November 27, 2005, Respondent credited Burns
for the overtime hours that he worked on November 24, 25 and 26, 2005, pursuant
to the overtime system that is maintained and administered by the
About November 27, 2005, the Respondent did not charge employees who engaged in the concerted refusal to perform voluntary overtime, as described above.
The Employer initially determines if it will need employees
to perform work on an overtime basis; however, the
The Company will distribute overtime in as fair and equitable a manner as circumstances and the job requirements will permit. Records of overtime distribution will be maintained locally. Overtime distribution procedures cannot be designed to encourage or foster payment of overtime at two (2) times the straight time rate.
The overtime rules are established and voted on by the employees in each of the Employer’s facilities. The Lawrence Garage overtime list rules and guidelines states, inter alia:
2. Distribution of overtime: Overtime will be distributed in a fair and equitable manner as outlined in the contract. The person with the lower hours will be given the first opportunity to work. Job continuity and specialized skills will be considered where applicable by management when making this determination.
3. Tracking overtime. Overtime hours will be kept on a daily basis
Monday through Friday. Charged hours
will be recorded by a designated person acceptable by the
4. Availability. The overtime availability will run from Monday
through Sunday. All hours will be calculated
daily Monday through Thursday, with Friday morning’s list representing the
order of technicians to work the weekend depending on their availability. Employees will make themselves available at
the start of their normal tour of duty for that day’s overtime. Weekend availability will be taken Friday
morning and will stand for the weekend and
5. Vacation. No charge Friday and Saturday before the vacation week and the Sunday after the vacation week, except when vacation is taken on a “day at a time” basis. No charge for any vacation day. Full E.W.D. or any 1/2 E.W.D. in the second half of the workday. No charge for Saturday or Sunday if combined with 5 vacation days (or 4 vac. Days + HOL), i.e. (vac Thur.–Fri. and Mon.–Wed., or Wed.–Fri.+ Mon.–Tue. Etc.)
6. All hours of overtime worked will be charged.
7. Incidental Overtime. Only those who work will be charged, providing there is no overtime scheduled for that evening.
8. Charging. During the week if you are asked to work overtime and refuse, you will be charged the minimum 2 hour bogey when the maximum forced hours are 10 per week, and 3 hours when the maximum forced hours are 12 per week. If you work 1 hour of O.T. and are asked to work and refuse, you will be charged the additional hours. . . . On weekends and Holidays, you will be charged a flat rate of 8 hours. . . .
Lawrence Lumia Jr., a union member and an SST employee at the facility, has administered and maintained the overtime list at the facility for in excess of 5 years. This overtime list rules and guidelines is posted in the employees’ breakroom at the facility. The employees at the facility meet in December every year to propose and vote on changes to these overtime rules, although these changes have not been put in writing. Although the rules and application are somewhat complicated, the purpose of the rules and list is simple: the employee with the least amount of accumulated overtime should be the first one chosen to work overtime. The most important category on the overtime list is the year-to-date total for all overtime hours worked and charged. The employee with the lowest number of hours year-to-date is at the top of the list and as you go down the list the number of hours increases to the last name on the list, the employee with the highest number of overtime hours worked or charged, and this is the employee who would be called last for overtime.
Robert Antonelli, a first-line supervisor for the Employer
at the facility, testified that each morning the managers at the facility ask
the SSTs working under their supervision if they would be available for
overtime that day should their services be needed. This information is recorded, and given,
together with a listing of the employees who worked overtime the prior day and
the number of hours worked, to Lumia, or another union representative. Lumia then updates this list, charging, or crediting,
employees who worked overtime, and charging employees who refused overtime
work, although he testified that there are some exceptions where employees are
not charged for refusing overtime work, such as if they are in training, on vacation,
a sick day, union business, or a blood donor. On those occasions they would not be charged
for refusing overtime. After assembling
this information, Lumia then informs Antonelli of the priorities, or gives him
the updated list, and the Employer then calls employees for overtime pursuant
to the priorities, and qualifications, on the list. The dispute herein is not about the exceptions
set forth above, but to another exception alleged by the Union; that when the
employees at the facility collectively vote to pull their overtime for a
certain period, they are not charged for refusing overtime during that period.
Lumia testified that the rule is that when all the employees at the garage
collectively pull their overtime, “no one will be charged if someone is forced
to work overtime.” Burns testified that
he is not aware that the
The events herein occurred during the Thanksgiving week of 2005, from Monday, November 21, through Sunday, November 27. Because of the nature of the Employer’s operation, the employees at the facility work a Monday through Saturday workweek, and must be available for overtime work when needed. Those employees who are scheduled to work on Saturday do so at a straight-time basis and are given one other day off that week, plus Sunday. The day off is known as “Day Unassigned” or DU, and a DU schedule is posted weekly where the employees’ assigned DUs are listed. The past practice at the facility has been that there would be no DU postings for the Thanksgiving or Christmas weeks. However, on November 16, the Employer announced that there would be a DU schedule for the week of Thanksgiving, and that employees who were asked to work on their DU day, would do so at straight time rather than at the overtime rate. So, for example, all employees who were scheduled to have their day off on Monday, Tuesday, or Wednesday that week (all the employees at the facility took the Friday after Thanksgiving as their floating holiday) could be asked to work on Saturday at straight time. The employees at the facility were unhappy with this decision by the Employer and at a meeting of the unit employees on November 17, a majority voted to withhold, or “pull” their availability for overtime for the week, except for Thursday, November 24. Burns participated in this action with the other employees until Friday, November 25, when he made himself available for voluntary overtime beginning on that day, and worked 14 hours of overtime on Friday, November 25, 17 hours of overtime on Saturday, November 26, and 6 hours on Sunday, November 27. He was charged, or credited, for these overtime hours while none of the other employees were charged for refusing to work overtime during this period. As a result, his position on the overtime list went from number 10 of 52 on November 23, to number 46 as of November 28.
Burns testified that when he arrived for work on Monday,
November 28, Union Steward Brian Kierce told him that it was wrong for him to
go against the
There have been situations in the past where the employees at the facility have pulled their overtime in protest of the Employer’s actions. Burns testified to two other occasions when the employees at the facility pulled their availability for overtime work. In 2003, at a time when negotiations for a new contract appeared to be stalled, the employees at the facility collectively agreed to not be available for voluntary overtime work. On another occasion, to protest a fellow employee’s suspension, the employees at the facility again pulled their availability for overtime work. Burns participated in this action with his fellow employees on both of these occasions and was not charged for refusing overtime on either of these occasions. He testified that on both these occasions, after the Employer was unable to obtain employees for voluntary overtime, they assigned employees (from the top of the list) mandatory overtime. Kierce, who has been employed by the Employer at the facility for 9 years, also testified about these two situations where the employees voluntarily pulled their overtime availability, and those employees who did not work overtime during those periods were not charged for the time.
iv. analysis
The gravamen of this case is that the
I should initially note that I found some of the evidence
herein irrelevant to the ultimate determination in this matter. For example,
all the Union’s rules determining how many hours employees would be charged for
refusing voluntary overtime has little, if any relevance to this matter, nor is
there any relevance to the discussions between Burns and Kierce on November 28
and 29. Additionally, I should also note
that my careful reading of the transcript convinces me that Burns, who appeared
to be unwilling to make any admissions that might appear to be favorable to the
Office Employees Local 251, AFL–CIO (Sandia Corp.), 331 NLRB 1417 (2000), involved a dispute between officers of the union, dueling impeachment charges, and the removal of the vice president from her position, as well as her expulsion from the union, although, the Board noted, that her employment was not affected by this action. In dismissing the complaint, the Board stated, inter alia:
What is of critical significance in our judgment is that the only sanctions visited on the Charging Parties by the victorious intraunion faction were internal union sanctions, such as removal from union office and suspension or expulsion from union membership. The relationship between the Charging Parties and their Employer, Sandia, was wholly unaffected by the discipline. Nor are any policies specific to the National Labor Relations Act implicated by the union discipline at issue . . . we find that Section 8(b)(1)(A)’s proper scope, in union discipline cases, is to proscribe union conduct against union members that impacts on the employment relationship, impairs access to the Board’s processes, pertains to unacceptable methods of union coercion, such as physical violence in organizational or strike contexts, or otherwise impairs policies imbedded in the Act.
The Board further stated that Section 8(b)(1)(A) “. . . was
not enacted to regulate the relationship between unions and their members
unless there was some nexus with the employer-employee relationship and a
violation of the rights and obligations of employees under the Act. In Healthcare
Employees Union, Local 399 (City of
It is clear that under Scofield,
Sandia, City of Hope, and Electrical
Workers Local 15 (Commonwealth Edison), 341 NLRB 336, 343–344 (2004), the
Union could have fined Burns for volunteering for, and performing, overtime
work on November 25, 26, and 27; however, rather than fining him, the Union
charged Burns for the voluntary overtime hours that he worked on these days,
while not charging the other union members who collectively pulled their hours
for those days. The issue is whether
this constituted internal union fines or sanctions permitted by Scofield, Commonwealth Edison, and Sandia, or did it impact on Burns’ employment
relationship which, the Board stated in Sandia,
is proscribed by Section 8(b)(1)(A) of the Act. As counsel for the General Counsel states in
her brief, both sides herein were engaged in protected concerted activities
protected by Section 7 of the Act; the union members in collectively agreeing
to pull their overtime availability for the days in question in protest of the
Employer’s posting of the DU list, and Burns in deciding that he would not
participate in the refusal to work voluntary overtime, and neither could have
their employment relationship adversely affected by their actions. Yet, as a result of Burns’ refusal to
participate in the Union’s concerted actions, and the Union’s failure to charge
it members for the overtime hours that they refused to work, his opportunity to
obtain future overtime work was greatly reduced. It is undisputed that the
Counsel for the Respondent, in his brief, argues that even
if the Union’s overtime rules restrained Burns’ Section 7 rights to work
voluntary overtime in contravention of the Union’s request, that right is
outweighed by the Union’s legitimate interest in maintaining solidarity and
loyalty among its members for the common good of all the members, citing Service Employees Local 254 (Brandeis
University), 332 NLRB 1118 (2000), and
Steelworkers Local 9292 (Allied Signal
Technical Services Corp.), 336 NLRB 52 (2001). In this situation that means that the Union
should be given leeway to enforce solidarity among its members to heed the
Conclusions of Law
1. The Employer has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The
3. By charging Burns for the overtime hours that he worked on November 25, 26, and 27, 2005, while not charging other union members for the overtime hours that they refused to work during those days, the Union has been restraining and coercing employees in the exercise of their Section 7 rights, in violation of Section 8(b)(1)(A) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair labor practices, I recommend that it be ordered to cease and desist from engaging in these activities, and that it be ordered to take certain affirmative action designed to effectuate the policies of the Act. In that regard, it is recommended that the Respondent rescind the overtime rule it relied upon in the instant matter that employees of the Employer at the facility who collectively pull their overtime availability, will not be charged for refusing voluntary overtime work during that period. I also recommend that the Respondent be ordered to reimburse Burns for the loss that he suffered as a result of its action in not charging the Employer’s employees for their refusal to work voluntary overtime for the period November 25 through 27, 2005, plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on the entire record, I issue the following recommended2
ORDER
The Respondent, International Brotherhood of Electrical Workers, Local 2321, AFL–CIO, its officers, agents, and representatives, shall
1. Cease and desist from
(a) Enforcing an overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods, are charged for the overtime hours worked.
(b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed them by Section 7 of the Act.
2. Take the
following affirmative action designed to effectuate the policies of the Act.
(a) Make whole Gregory Burns for the overtime hours that he lost due to the Respondent’s failure to charge employees of the Employer for the overtime hours that they refused to work on November 25, 26, and 27, 2005.
(b) Within 14 days after service by the Region, post at
its union office and at an appropriate place at the
(c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply.
Dated,
APPENDIX
Notice To
Employees
Posted
by Order of the
National
Labor Relations Board
An Agency of the
The National Labor Relations
Board has found that we violated Federal labor law and has ordered us to post
and obey this notice.
federal law gives you
the right to
Form, join, or assist a
union
Choose representatives to
bargain with us on your behalf
Act together with other
employees for your benefit and protection
Choose not to engage in any
of these protected activities.
We will not enforce an overtime rule at the Verizon Lawrence garage that provides that employees who collectively pull their overtime availability are not charged for refusing to work overtime, while employees who do work overtime during these periods, are charged for the overtime hours worked.
We will not in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed them by Section 7 of the Act.
We will make whole Gregory Burns for the overtime hours that he lost due to the our failure to charge employees of Verizon at the Lawrence garage for the overtime hours that they refused to work on November 25, 26, and 27, 2005.
International Brotherhood of Electrical Workers,
Local 2321, AFL–CIO
1 The Respondent has requested oral argument. The request is denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties.
In light of the findings herein, the Employer Verizon New England’s Motion for Leave to File Answering Brief is denied as moot.
2 We have modified the Order to conform to the judge’s recommendation that the overtime rule be rescinded and to conform to the Board’s standard remedial language. We have attached a new notice to conform to the Order.
3 If this Order is enforced
by a judgment of a
1 Unless indicated otherwise, all dates referred to herein relate to the year 2005.
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes.
3 If this Order is
enforced by a judgment of a