Beverly Manor Convalescent Center

National Labor Relations Board - Board Decisions

May 16, 1977

229 N.L.R.B. 692 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service Employees International Union, Local No.
579, AFL-CIO (Convacare of Decatur d/b/a
Beverly Manor Convalescent Center, et al.) and
Carolyn P. Evans and John Scales.
Cases 10-CB-2564 and 10-CB-2573
more nearly that of a legislator to a constituent. Cf. Steele v. Louisville &
Nashville Railroad Co., et al., 323 U.S. 192 (1944). Although that requires
that union decisions affecting employees be made in good faith, application
of the strict standard of allegiance owed by an attorney to a client might
well preclude representation by a union of more than one member because
of the potential conflicts of interest.
We adopt pro Jorma, in the absence of exceptions, the Administrative
Law Judge's finding that the Respondent violated Sec. 8(bXIXA) when its
agent told an employee that the Respondent did not file grievances.
May 16, 1977
DECISION AND ORDER DECISION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND WALTHER
On December 28, 1976, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, both the General Coun-
sel and the Respondent filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 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 the Respondent, Service Employ-
ees International Union, Local No. 579, AFL-CIO,
Atlanta, Georgia, its officers, agents, and representa-
tives, shall take the action set forth in the said
recommended Order.
The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 We agree that the Respondent violated Sec. 8(b)(IXA) by its
perfunctory handling of Carolyn Evans' grievance. But we do not adopt any
implication that, in the informal, investigative, or bargaining stage of a
grievance, a collective-bargaining representative's duty to an employee it
represents is analagous to that owed by an attorney to a client. The nature of
the relation between a labor organization and an individual employee is
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge: These
consolidated cases were heard on September 21, 1976, in
Atlanta, Georgia. The charge in Case 10-CB-2564 was
filed by Carolyn P. Evans, an individual, on April 21,
1976,1 and amended on June 11. The charge in Case 10-
CB-2573 was filed by John Scales, an individual, on May
21 and amended on June 14. Based upon these charges and
amended charges, on September 2, the Acting Regional
Regional Director for Region 10 of the National Labor
Relations Board issued an order consolidating cases,
complaint, and notice of hearing. The complaint alleged
that Service Employees International Union, Local No.
579, AFL-CIO, herein Respondent, failed and refused to
process the grievance filed by Carolyn P. Evans, an
employee of Convacare of Decatur d/b/a Beverly Manor
Convalescent Center because of her nonattendance at
union meetings and for other arbitrary or irrelevant
reasons. The complaint further alleged that the said Local
No. 579 failed and refused to process a grievance on behalf
of John Scales, an employee of Springdale Convalescent
Center, for arbitrary and irrelevant reasons, and told Scales
that Respondent did not file grievances. By the foregoing
conduct, it was alleged, Respondent violated Section
8(b)(1)(A) of the Act. A timely filed answer denied the
substantive allegations of the complaint.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce oral and documentary evidence, and to argue orally.
A brief was submitted by General Counsel.
Throughout the hearing, I carefully observed the witness-
es. Based upon my observation of these witnesses and their
demeanor, and my consideration of the entire record in this
case, 2 I make the following:
All dates hereinafter are in 1976 unless otherwise specified.
General Counsel's motion to reopen the record and receive G.C. Exh. 5
into evidence is hereby granted.
229 NLRB No. 104
692
SERVICE EMPLOYEES INTL. UNION, LOCAL 579
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS-
PRELIMINARY CONCLUSIONS OF LAW
The complaint alleges, Respondent admits, and I find
that Convacare of Decatur d/b/a Beverly Manor Conva-
lescent Center (herein Beverly Manor) and Springdale
Convalescent Center (herein Springdale) are corporations
which operate nursing homes within the State of Georgia.
Jurisdiction is not in issue; each annually derives gross
revenues in excess of $100,000 and makes substantial
purchases of goods directly or indirectly from outside the
State of Georgia. I conclude that both Beverly Manor and
Springdale are employers within the meaning of Section
2(2) of the Act, engaged in commerce and in operations
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
The complaint alleges, Respondent admits, and I find
and conclude that Respondent is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. John Scales' Grievance
1. The facts
John Scales is employed at Springdale as a housekeeper
and porter. He is a member of Respondent Local No. 579
and, since the Union was selected as Springdale's employ-
ees' collective-bargaining representative, has been the
Union's chief steward in that unit.
On January 30, Scales received a written warning for
tardiness, stating that he had been late arriving for work 4
days in a I-week period. According to Scales, as corrobo-
rated by his timecard, three of the incidents involved
tardiness of only a single minute and on the fourth
occasion he was 14 minutes late as a result of a power
failure in his neighborhood during the night. Scales
protested the warning and its wording to both his
supervisor and the nursing home administrator, Ms. Jerri
Keys. Keys refused to expunge the warning but did agree
to have some of the language therein modified.
Scales then contacted Respondent's business agent, Paul
Masson. Pursuant to Masson's suggestion, Scales went
back and spoke again to Keys. He told her that the
timeclock did not coincide with the other clocks on the
premises but he did not follow Masson's suggestion that he
and Keys check the accuracy of the timeclock together.
Keys once again refused to revoke the warning notice given
to Scales.
A couple of days thereafter Scales returned to the union
office and spoke again with Masson. Scales told Masson
that he wanted to file a grievance to have the warning
revoked. Masson attempted to question Scales about the
3 Masson testified that what he had said in effect was that the Union did
not run around arbitrarily filing grievances. However, Scales' testimony in
regard to the final statement made to him by Masson is corroborated,
almost verbatim. by the testimony of Dianne P. Hartsfield. Hartsfield is an
organizer employed by the Respondent and was sitting outside of Masson's
office at the time this exchange took place. Both Scales and Hartsfield
testified credibly. and particularly noting the corroboration of Scales'
testimony by an agent of Respondent, I credit his testimony.
details of the incident and an argument developed over
whether Scales was going to tell Masson his story his own
way or whether Masson was going to question him closely
about it. According to Scales, Masson told him that, if he
(Scales) wasn't going to listen to Masson, he could get up
and get out of the office. Scales asked Masson for the forms
on which to file a grievance and stated that he would fill it
out himself and Masson told him, "We don't have any
paper to file no grievance on. We don't file grievances." At
this point Scales got up to leave, protested that Masson
never did anything for the employees in the unit who had
grievances except to question them as a prosecutor would,
and then asked, one last time, whether Masson was going
to file a grievance on his problem. Masson replied, "No,
this Union don't file grievances." Scales replied that that's
all he wanted to know and walked out.3
2. Discussion and conclusions
Respondent contends, essentially, that its refusal to
process further the grievance of John Scales was justified
by Scales' own failure, both as employee and union
steward, to fulfill his obligations to investigate the griev-
ance, particularly his failure to adequately investigate and
discuss with the nursing home administrator the alleged
inaccuracy of the timeclock. I find merit to this contention.
Moreover, Scales' testimony indicates only that, in his final
conversation with Masson, Masson was attempting to elicit
the facts from Scales. Scales, perhaps because of his
excitability and emotional involvement with this incident,
as indicated by his own testimony, saw this as Masson
assuming a prosecutorial role and he did not give Masson
the factual wherewithal upon which to file a grievance.
Neither Masson's angry statement to the effect that this
Union did not file grievances, nor the record herein,
establishes a general practice on Respondent's part not to
file grievances.4 I do not find that Respondent's refusal to
further process a grievance on behalf of Scales resulted
from any such policy. Accordingly, I recommend that this
allegation be dismissed. However, it is clear that Masson
did state to Scales, a union steward, that the Union did not
file grievances. Such a statement, made to any employee
but particularly to a steward, could not help but inhibit
employees and restrain them from exercising their statuto-
ry rights to enforce their right to fair representation.
Accordingly, I find that, by telling Scales that Respondent
did not file grievances, Respondent restrained and coerced
employees in the exercise of their Section 7 rights and
thereby violated Section 8(b)(IXA) of the Act.
4 The complaint did not allege a general unwillingness to file grievances
by Respondent and, while the record herein, particularly in regard to
Beverly Manor. raises some questions as to this Union's willingness to
prosecute grievances, no finding on such an allegation can or will be made
herein.
693
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Carolyn P. Evans' Grievance
1. The facts
Carolyn Evans was a licensed practical nurse (LPN)
employed since February 1974 on the evening shift at
Beverly Manor. 5 Respondent Local No. 579 has been the
collective-bargaining representative of Beverly Manor's
employees, including the LPNs, since approximately
December 1975, and Evans is a member of the Union. She
has not attended union meetings.
On Friday, February 29, Evans switched shifts with
another LPN, Price, in order to attend her daughter's piano
recital. The collective-bargaining agreement between Bev-
erly Manor and Respondent requires that employees
secure permission from the administrator or director of
nursing prior to making such a shift change. Evans testified
that approximately 2 weeks earlier she had told Kampten,
the director of nursing, that she needed to change shifts for
the foregoing reason and permission was granted at that
time. She further testified that when she saw the work
schedule for February 29 she noted that she was still listed
for her regular evening shift and once again spoke to
Kampten and confirmed her permission to change shifts
with Price. 6 Nothing was said to Evans during the
following week until Friday, March 5, except that on
Thursday, March 4, Beverly Manor's administrator, Wolfe,
announced a rule against switching shifts because of the
overtime costs involved. On March 5, Kampten called
Evans at her home and discharged her because she had
switched shifts with Price. Price was not discharged. 7
Immediately following her discharge Evans called the
union office. Her call was received by Dianne Harsfield
who recalled that Evans was distraught, crying, and that
she related that she had just been terminated. She asked to
speak to someone in the Union who could help her.
Harsfield referred the call to Paul Masson. Masson
directed Evans to get in touch with Truzella Miller, the
union's chief steward at Beverly Manor, and then have
Miller call Masson. Evans tried to reach Miller at the
nursing home and, when unsuccessful, called her at her
home. She told Miller that she had been discharged by
Kampten, allegedly for switching shifts, and Miller said she
would look into it.8
5 She also had a prior period of employment with Beverly Manor under
its previous owners.
5 Kampten, who is no longer employed by Beverly Manor, denied that
Evans had asked for permission to switch shifts with another employee or
that she gave Evans permission to do so. Kampten, however, did recall
Evans telling her about a forthcoming piano recital in which her daughter
was participating. In this type of a case, the Board does not sit in place of
the arbitrator and no resolution of this credibility issue is required, The
Buffalo Newspaper Guild, Local 26, American Newspaper Guild, AFL-CIO-
CLC (Buffalo Courier Express, Inc.), 220 NLRB 79 (1975).
7 General Counsel contended that Beverly Manor's discharge of Evans
while retaining Price was evidence of a racially discriminatory practice
inasmuch as Evans was black and Price was white. These facts raise a
colorable claim of racial discrimination. However, the Board is not called
upon to determine the ultimate grievance issue. See Buffalo Courier Express,
Inc., supra. Kampten had testified that Price was not discharged because
Price had been unaware that Evans lacked permission to arrange a change
in shifts.
8 Miller confirmed that Evans called her and told her of the discharge,
but claimed that she asked Evans whether Evans wanted her to file a
grievance and Evans told her that she didn't want a grievance filed. I do not
On Monday or Tuesday of the following week, Miller
went to the office of Richard Wolfe, the administrator, and
asked what the problem was with Evans. According to
Miller's testimony, Wolfe said that they had had a lot of
problems with Evans and showed Evans' personnel file to
Miller. The file reflected warnings and disciplinary actions
taken in regard to Evans in the past.9 Miller did not discuss
Evans' discharge with Wolfe but only looked at the file.
The record does not reflect that she asked Wolfe or
Kampten whether the assigned reason for discharge, the
swapping of shifts, was correct. Miller did not question
Evans about either the change in shifts or any of the
matters contained in her personnel file. After looking at
Evans' personnel file, Miller told Wolfe that "there were a
lot of problems there." She had no further conversation
with Evans or Wolfe.
Following her review of Evans' personnel records, Miller
called Masson. According to Miller's testimony she merely
told Masson that Evans had called and reported that she
had been terminated. Miller reiterated her claim that Evans
had said that she wanted no grievance filed. Masson
allegedly replied that it was up to Evans and Miller to
decide what was to be done. On cross and redirect
examination Miller testified that she told Masson that
Beverly Manor had had a lot of problems with Evans and
that she thought the Employer had a reason for terminating
her. She further testified that Masson told her that if Evans
filed a grievance he and Mr. Wolfe could try to get together
and work out a solution to that grievance. According to
Masson, Miller called him following her meeting with
Wolfe, informed him of the results of her "investigation"
and when asked, told Masson that in her opinion Evans
was terminated for cause. Masson agreed. Miller told
Masson that Evans did not want to process the "case"
further. Masson did not thereafter talk with either Wolfe or
Evans about the Evans' termination until Evans subse-
quently appeared at his office on April 20. Masson stated
that he relied totally on the report from the steward.
On April 20 Evans went to Masson's office. She told him
that she wanted to see him about a grievance. Masson
proceeded to call the nursing home and ask Wolfe whether
Beverly Manor had received an Equal Employment
Opportunity Commission charge. He told Wolfe that the
Union had received one and requested Wolfe to send over
credit Miller's testimony in this regard. It is obvious from Evans' call to the
union office, and her calls to Miller, that she wanted assistance of the Union
and was not calling merely to relay a bit of information. Moreover, Miller's
testimony in this regard, aside from being illogical, was not tendered in a
manner conducive to belief. I note, in particular, that during the course of
Miller's direct examination, Miller stated no less than 13 times in the course
of 39 pages that Evans had told her that she did not want a grievance filed.
In the words of the immortal Bard, "Me thinks she doth protest too much."
I note also that following her conversation with Evans, and notwithstanding
the alleged request not to file a grievance, Miller proceeded to meet with
Wolfe, the nursing home administrator, as discussed below.
9 Evans' personnel file contains two written warnings given to her in
June and July 1975 for her attitude and for an error in signing for narcotics,
respectively, four notations of absence due to illness, three warnings in
January and February 1976, which apparently were not seen by her, and
record of a 3-day suspension commencing February 9, 1976. The suspension
appears to have been assigned to her because of the prior warnings, but
testimony indicated that it grew out of an incident between Evans and a
registered nurse which Evans attributed to her being ill as a result of a recent
automobile accident.
694
SERVICE EMPLOYEES INTL. UNION, LOCAL 579
all of his documentation on the Evans' matter. Masson
then proceeded to ask Evans whether she could secure her
medical records. He also questioned her about her use of
drugs, her blood pressure, and the recent passing of her
mother. Evans asked why Masson was questioning her
thusly and if he was going to file a grievance. He told her
that he was not. After a few more words were exchanged,
she left the office.
Respondent's collective-bargaining agreement with Bev-
erly Manor provides a four-step grievance procedure
applicable to discharge actions, the final step of which is
final and binding arbitration. The first step provides for a
meeting between the chief steward and nursing home
administrator. Absent settlement at step one, step two
provides for reduction of the grievance to writing and a
meeting between the business agent and the administrator.
At step three the business agent meets with the representa-
tive of the nursing home's owner. The procedure provides
that a grievance "shall be initiated within 5 calendar days
of the alleged violation" and arbitration may be sought
"within 30 calendar days from the date of the alleged
violation providing steps one, two and three of this
procedure have been fully complied with in a timely
manner."
2. Discussion and conclusions
The complaint alleged that Respondent violated Section
8(b)(1)(A) by refusing to process Carolyn Evans' grievance
because of her failure to attend union meetings and for
other arbitrary and irrelevant reasons. Respondent, by its
answer, contended that Evans' grievance was processed
through the first step, at which point it determined that
Evans was justly discharged for her poor work record. On
the basis of that determination, Respondent alleged, it
determined not to process the grievance further.
It is well settled that a Union which enjoys the status of
exclusive collective-bargaining representative has an obli-
gation to represent employees fairly, in good faith, and
without discrimination against any of them on the basis of
arbitrary, irrelevant, or invidious distinctions. Vaca et al. v.
Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc.,
140 NLRB 181 (1962). A union breaches this duty when it
arbitrarily ignores a meritorious grievance or processes it in
a perfunctory fashion. Vaca v. Sipes, supra at 191, 194;
Hines v. Anchor Motor Freight, Inc., 424 U.S. 554 (1976);
Teamsters and Chauffeurs Local Union No. 729 (Penntruck
Co., Inc.), 189 NLRB 696, 702 (1971). Correspondingly, so
long as it exercises its discretion in good faith and with
honesty of purpose, a collective-bargaining representative
is endowed with a wide range of reasonableness in the
performance of its duties for the unit it represents. Mere
negligence, poor judgment, or ineptitude in grievance
handling are insufficient to establish a breach of the duty
of fair representation. Ford Motor Company v. Huffman,
345 U.S. 330 (1953); King Soopers, Inc., 222 NLRB 1011
(1976); Truck Drivers, Oil Drivers and Filling Station and
Platform Workers, Local No. 705 (Associated Transport,
Inc.), 209 NLRB 292, 304 (1974); Maxam Dayton, Inc., 142
'o Had she done so, she might have arrived at the conclusion suggested
by General Counsel: racial discrimination in the assignment of discipline.
This, too, might have provided a basis for a meritorious grievance.
NLRB 396, 418 (1963). There comes a point, however,
when a Union's action or its failure to take action is so
unreasonable as to be arbitrary and thus contrary to its
fiduciary obligations. Allen L Griffin v. International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, UA W, 469 F.2d 181 (C.A.
4, 1972); United Steelworkers of America, Local 8093, AFL-
CIO-CLC (Kennecott Copper Corporation, Ray Miner
Division), 225 NLRB 802 (1976); King Soopers, supra;
General Truck Drivers, Warehousemen, Helpers and Automo-
tive Employees, Local 315 (Rhodes & Jamieson, Ltd), 217
NLRB 616 (1975).
The only evidence of an unlawful reason for Respon-
dent's failure to act further on Evans' behalf is found in
Masson's affidavit. Therein, he stated:
Evans has not attended any union meetings and in
previous cases which I had with Region 10 of the
NLRB, this fact was given considerable weight where
the charging party, who was a member of the union
alleged that the union had failed to fairly represent
them.
The context of this statement would seem to indicate that it
was part of Masson's argument against issuance of
complaint, not a reason why the Union did not process the
grievance. At best, it is too ambiguous to support a finding
that Respondent refused to process Evans' grievance
because of her failure to attend union meetings.
The question is thus whether Respondent's processing of,
or refusal to process, Evans' grievance was so unreasonable
as to be arbitrary. I conclude that it was. In reaching this
conclusion I note particularly the following: When Miller
reviewed Evans' personnel file in Wolfe's office, she
undertook, intentionally or otherwise, to represent Evans
at step one of the grievance procedure. Having undertaken
that responsibility, Miller became obligated to represent
Evans fully and fairly and to function as her advocate.
United Steelworkers of America, AFL-CIO (Interroyal
Corp.), 223 NLRB 1184 (1976); Associated Transport, Inc.,
supra. Miller failed to fulfill this obligation when, after
reviewing the file, she agreed with Wolfe that there were a
lot of problems with Evans. More importantly, I believe,
Miller and Masson essentially abdicated their responsibili-
ties toward Evans by failing to question, or even consider,
the validity of the reason assigned for Evans' discharge.
Evans was discharged for allegedly switching shifts without
permission, not for her past derelictions. If, in fact,
permission had been granted, the immediate cause for the
discharge would have been removed and the discharge
action would, in all likelihood, not have withstood the
arbitral process. Miller did not seek Evans' side of the
story; she did not raise the question with Wolfe and she did
not question either Director of Nursing Kampten or Price,
the nurse who made the switch with Evans.'o Masson, of
course, questioned no one other than Miller. In evaluating
the grievance, neither Miller nor Masson gave any
consideration to the alleged precipitating event. Had they
done so, Evans might have convinced them of the merits of
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her claim. But whether they, or the Employer, would have
been convinced is, at this point, irrelevant. As the Board
stated in Interroyal Corp., supra 1185, wherein the union
president peremptorily refused the grievant's explanation
and attempt at proof:
[I ]t is patently irrelevant that the proof Beshears had in
hand on March 24 might not have fully satisfied the
Employer-it was not even considered by the Respon-
dents.
This failure to inquire into the validity of the stated reason
for the discharge, and willingness to evaluate the worth of
an employee solely through the eyes of the employer, is
more than mere negligence or ineptitude. It is perfunctory
grievance handling and so unreasonable as to be arbitrary.
Additionally, I note that Miller cut off further consider-
ation of Evans' grievance when, contrary to Evans'
intentions, she told Masson that Evans did not want a
grievance processed. Had she not thus blocked further
consideration (and had Masson not accepted her state-
ment, which conflicted with the tenor of his earlier
conversation with Evans, so readily), Masson, with his
greater expertise, might have discovered the flaws in
Miller's "investigation," seen the credibility conflicts
between Evans and Kampten and the possibility of racial
discrimination, and determined to process the grievance
further or otherwise meet with Wolfe and work out some
sort of equitable adjustment."
Accordingly, I find that by failing and refusing to process
Carolyn Evans' grievance under the foregoing circumstanc-
es, Respondent has breached its duty of fair representation
and has violated Section 8(b)()(A) of the Act.
III. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(bX)(XA) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It is not the function of the Board to decide the merits of
a grievance in determining whether the refusal to process
that grievance was violative of the Act: it is sufficient to
determine from the record that the grievance was not
"clearly frivolous." Buffalo Courier-Express, Inc., supra.
Carolyn Evans' grievance was clearly not frivolous. An
arbitrator, believing Evans, could find that the Employer
erred in discharging her when it did; the arbitrator could
also find racial discrimination in the assignment of
discipline or that the discipline assessed here was excessive
in light of Evans' medical problems which contributed to
some of her earlier warnings. Even prior to arbitration, on
the facts herein, the Union might have successfully
prevailed upon the Employer to rescind or modify the
discipline.
11 In this regard. I note and reject Respondent's contention that if it
takes a grievance, it must be willing to press that grievance all the way to
arbitration. The vast majority of all grievances are resolved short of
arbitration. Vaca v. Sipes, supra, fn. 15. Accepting Evans' grievance at the
prearbitration steps of the procedure would not have precluded a
subsequent dropping of that grievance if such a determination were made
reasonably. in good faith and honestly.
However, the uncertainty as to whether Evans' grievance
would have been found meritorious or would have
otherwise been adjusted is a direct product of Respon-
dent's unlawful action. Where, as here, resolution of that
uncertainty is required for the determination of monetary
responsibility, it is proper to resolve the question in favor of
the injured employee and not the wrongdoer. Accordingly,
for the purposes of remedy, I shall presume that if fully and
fairly processed, Evans' grievance would have been found
meritorious and that she would have been reinstated with
backpay. King Soopers, Inc., supra; Local Union No. 2088,
International Brotherhood of Electrical Workers, AFL-CIO
(Federal Electric Corporation), 218 NLRB 396 (1975).
Respondent's backpay liability must be limited to any
loss Evans suffered as a result of the refusal to consider and
process her grievance. That grievance is now time-barred;
however, Respondent may be able to prevail upon the
Employer to waive those time limits. Accordingly, I shall
recommend that Respondent make Evans whole for any
loss of earnings she may have suffered as a result of her
discharge by Beverly Manor from the date of that
discharge, March 5, 1976, until the earlier of the following
occurs: Respondent secures consideration of her grievance
by the Employer and thereafter pursues it in good faith and
with all due diligence12 or, Evans is reinstated by Beverly
Manor or obtains other substantially equivalent employ-
ment. Interroyal Corp., supra; Federal Electric Corp., supra.
Backpay shall be with interest at the rate of 6 percent per
annum, as prescribed in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), and shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950).
ADDITIONAL CONCLUSIONS OF LAW
I. By Paul Masson's conduct in telling John Scales that
Respondent Union did not process grievances, Respondent
restrained and coerced employees in the exercise of the
rights guaranteed in Section 7 of the Act, and thereby
violated Section 8(b)(1)(A) of the Act.
2. By failing and refusing to process the grievance of
Carolyn P. Evans in regard to the termination of her
employment by Beverly Manor, Respondent has restrained
and coerced Evans in the exercise of rights guaranteed in
Section 7 of the Act, and thereby violated Section
8(b)(1)(A) of the Act.
3. The aforesaid unfair labor practices, occurring in
connection with the operations of Beverly Manor and
Springdale, 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.
They thus affect commerce within the meaning of Section
2(6) and (7) of the Act.
4. Respondent has not committed any unfair labor
practices not specifically found herein.
12 As the grievance has yet to be processed beyond the first step, it is
neither necessary nor appropriate at this time to order Respondent to
proceed to arbitration. Whether or not the Respondent's obligations under
the Act will require arbitration of the grievance necessarily depends upon
future events and its own conduct. See Interroyal Corp., supra, fn. 3.
696
SERVICE EMPLOYEES INTL. UNION, LOCAL 579
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I hereby issue the following recommended:
ORDER '13
The Respondent, Service Employees International
Union, Local No. 579, AFL-CIO, Atlanta, Georgia, its
officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Restraining or coercing any employee in the exercise
of rights guaranteed by Section 7 of the Act by stating that
the Union does not file grievances or by arbitrarily refusing
to consider and process grievances.
(b) Restraining or coercing employees in any like or
related manner.
2. Take the following affirmative action which is
necessary to effectuate the purposes of the Act:
(a) Request Beverly Manor to reinstate Carolyn P. Evans
to her former position or, if it no longer exists, to a
substantially equivalent position. If Beverly Manor refuses
to reinstate her, ask it to consider a grievance over her
March 5, 1976, termination and thereafter pursue her
grievance in good faith with all due diligence.
(b) Make Carolyn P. Evans whole for any loss of
earnings she may have suffered as a result of her discharge
by Beverly Manor, from March 5, 1976, until such time as
she is reinstated by Beverly Manor or obtains other
substantially equivalent employment or the Respondent
secures consideration of her grievance by the Employer
and thereafter pursues it with all due diligence, whichever
is sooner, together with interest at the rate of 6 percent per
annum, all to be computed in the manner set forth in the
section of this Decision entitled 'The Remedy.' "
(c) Post at their business offices and meeting halls and at
all places where notices to their members and other
employees in the bargaining unit are customarily posted
(including all such places in Beverly Manor and Springdale
Convalescent Centers) copies of the attached notice
marked "Appendix."' 4 Copies of said notice, on forms
provided by the Regional Director for Region 10, after
being signed by officials of the Respondent, shall be posted
by them immediately upon receipt thereof, and be
maintained for at least 60 consecutive days thereafter.
Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered, defaced, or covered
by any other material. The Respondent shall also sign
copies of the notice which the Regional Director shall
make available for posting by Beverly Manor and Spring-
dale, if they are willing.
(d) Notify the said Regional Director, in writing, within
20 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
L3 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings.
conclusions, and recommended Order herein shall, as provided in Sec.
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.
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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present their evidence, the National Labor Relations Board
has found that we violated the National Labor Relations
Act, and has ordered us to post this notice and we intend to
carry out the Order of the Board.
WE WILL NOT fail or refuse to fairly represent any
employee in a bargaining unit represented by us or
arbitrarily fail or refuse to file and process any
employee's grievance.
WE WILL NOT tell employees that our Union does not
file grievances.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of their right to
engage in or refrain from engaging in concerted
activities guaranteed by Section 7 of the Act, except to
the extent that such right may be affected by an
agreement authorized by Section 8(aX3) of the Act.
WE WILL request Beverly Manor to reinstate Carolyn
P. Evans to her former position or, if it no longer exists,
to a substantially equivalent position. If it refuses to
reinstate her, we will ask Beverly Manor to consider a
grievance over her March 5, 1976, termination and will
pursue it in good faith with all due diligence.
Since it was decided that we violated the Act by
failing and refusing to file and process Carolyn P.
Evans' grievance, WE WILL make her whole for any
losses she suffered by reason of our failure to promptly
file and process her grievance.
SERVICE EMPLOYEES
INTERNATIONAL UNION,
LOCAL NO. 579, AFL-CIO
697