Government Employees Local 888 (Bayley-Seton)

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 646 (N.L.R.B. 1992)

646
308 NLRB No. 88
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge found that American Federation of Government Em-
ployees, AFL–CIO (AFGE) is an alter ego of now-disbanded Local
888 and is liable for Local 888’s unfair labor practices. AFGE ex-
cepted on the ground that it is not named as a party in this proceed-
ing. On May 21, 1992, the Board issued a show cause notice afford-
ing AFGE an opportunity to show why it should not be bound by
any remedial order that may issue, and also inviting it to proffer evi-
dence in support of reopening the hearing on the issue of its liability.
AFGE’s answer to the show cause notice neither establishes any
legal basis for modifying the judge’s recommended Order nor prof-
fers any evidence to warrant reopening the hearing.
2 The judge did not include a backpay provision in his rec-
ommended Order because he found that the General Counsel had ex-
pressly disclaimed any request for backpay. We agree with the Gen-
eral Counsel’s exceptions on this issue and find that the failure ex-
pressly to request a backpay remedy is not a disclaimer. In any
event, we find that backpay is a matter within the Board’s remedial
authority and is predicated on the merits of the respective griev-
ances. We note in this connection that the Respondent originally de-
termined that the grievances warranted going to arbitration. We shall
therefore modify the judge’s recommended Order by requiring the
Respondent, because of its unlawful refusal to process the griev-
ances, to pay the grievants any backpay that may be owing to them
in the event that it is not possible to secure a resolution of the griev-
ances on their merits. See Rubber Workers Local 250 (Mack-Wayne
Closures), 279 NLRB 1074 (1986) (Mack-Wayne I), and Rubber
Workers Local 250 (Mack-Wayne Closures), 290 NLRB 817 (1988)
(Mack-Wayne II). Backpay shall be computed either in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), or in the
manner prescribed in Ogle Protection Service, 183 NLRB 682, 683
(1970), enfd. 444 F.2d 502 (6th Cir. 1971), whichever is appropriate
in the case of each individual grievant, with interest thereon com-
puted in accordance with New Horizons for the Retarded, 283 NLRB
1173 (1987).
In the absence of a showing of animosity that would preclude the
Union from representing the grievants, Member Oviatt would not re-
quire the Union to provide outside counsel to represent the grievants.
See General Motors Corp., 237 NLRB 1509 fn. 3 (1978).
Local 888, American Federation of Government
Employees (Bayley-Seton Hospital) and Hector
Gunaratne and Elsie Pascoe and Charles
Irizarry. Cases 29–CB–7435, 29–CB–7437, and
29–CB–7490
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On December 20, 1991, Administrative Law Judge
Steven B. Fish issued the attached decision. Thereafter,
the Respondent and the General Counsel filed excep-
tions and supporting briefs as well as answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions,1 and to adopt the recommended Order as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Federation of Government Employees, AFL–CIO,
and its Local 888, New Brunswick, New Jersey, its of-
ficers, agents, and representatives, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs.
‘‘(c) In the event that it is not possible to pursue the
remaining stages of the grievance procedure, resulting
in the inability to resolve the grievances of Hector
Gunaratne, Elsie Pascoe, and Charles Irizarry on the
merits, make them whole for any loss they may have
suffered as a result of its unlawful conduct in failing
to process their grievances, by payment to Elsie Pascoe
of the amount she would have normally earned if she
had not suffered a reduction in hours, and to Hector
Gunaratne and Charles Irizarry the amounts they
would have normally earned from the date of their dis-
charges until they obtained substantially equivalent
employment, less their net earnings during the backpay
period, together with interest.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT arbitrarily refuse to process the griev-
ances of any employees represented, or formerly rep-
resented, by us because the employees voted to be rep-
resented by another labor organization or because the
other labor organization becomes certified as the rep-
resentative of the employees, notwithstanding that the
grievances of the employees arose at a time when we
were the exclusive collective-bargaining representative
of the employees.
WE WILL NOT in any like or related manner restrain
or coerce employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
WE WILL promptly pursue the grievances of Hector
Gunaratne, Elsie Pascoe, and Charles Irizarry to arbi-
tration with Bayley-Seton Hospital in good faith with
all due diligence.
WE WILL permit Hector Gunaratne, Elsie Pascoe,
and Charles Irizarry to be represented by their own
647GOVERNMENT EMPLOYEES LOCAL 888 (BAYLEY-SETON)
1 All dates hereinafter are in 1989 unless otherwise indicated.
2 While every apparent or nonapparent conflict in the evidence
may not have been specifically resolved below, my findings are
based on my observation of the witnesses’ demeanor while testifying
and my evaluation of the reliability of their testimony; therefore any
testimony in the record which is inconsistent with any findings is
hereby discredited.
3 Both Irizarry and Gunaratne received letters from Respondent
dated May 21, informing them of the arbitration, and enclosing a
copy of the AAA’s notice of hearing. A copy of this letter was sent
to Rita Mason, AFGE’s vice president.
counsel at the arbitration proceedings and pay the rea-
sonable legal fees of such counsel.
WE WILL, in the event that we are unable to pursue
the remaining stages of the grievance procedure, result-
ing in the inability to resolve the grievances of Hector
Gunaratne, Elsie Pascoe, and Charles Irizarry on the
merits, make them whole for any losses they may have
suffered as a result of our unlawful conduct in failing
to process their grievances, by payment to Elsie Pascoe
of the amount she would have normally earned if she
had not suffered a reduction in hours, and to Hector
Gunaratne and Charles Irizarry the amounts they
would have normally earned from the date of their dis-
charges until they obtained substantially equivalent
employment, less their net earnings during the backpay
period, together with interest.
LOCAL 88, AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL–CIO
Brian Quinn, Esq,. for the General Counsel.
Derrick Thomas, National Representative, of New Bruns-
wick, New Jersey, for the Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN B. FISH, Administrative Law Judge. Pursuant to
charges filed in the above-cited cases by Hector Gunaratne,
Elsie Pascoe, and Charles Irizarry, the Region issued com-
plaints on December 21,1 27, 1989, and January 9, 1990, re-
spectively. All three complaints which essentially alleged
identical 8(b)(1)(A) violations against Local 888, American
Federal of Government Employees (Respondent); i.e., an ar-
bitrary refusal to process grievances, were subsequently con-
solidated for hearing by order dated June 13, 1990.
The trial with respect to issues raised therein was heard
before me on March 13, 1991, in Brooklyn, New York. A
brief has been filed by the General Counsel and has been
carefully considered.
Based on the entire record I make the following:
FINDINGS OF FACT2
I. JURISDICTION AND LABOR ORGANIZATION
Bayley-Seton Hospital (the Employer) is a New York cor-
poration located in Staten Island, New York, where it is en-
gaged in the operation of a hospital providing health care
services and related services. During the past year, the Em-
ployer derived gross revenues in excess of $250,000 and pur-
chased and received at its Staten Island, New York facility
products, goods, and materials valued in excess of $50,000
directly from points located outside the State of New York.
It is admitted and I find that the Employer is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act, and a health care institution within the meaning
of Section 2(14) of the Act.
It is also admitted that Respondent as well as North Shore
Health Care Employees Union (North Shore) are, and have
been at all times material herein, labor organizations within
the meaning of Section 2(5) of the Act.
II. FACTS
For many years, Respondent had been the recognized col-
lective-bargaining representative of all nonprofessional em-
ployees of the Employer including all management officials,
confidential employees, professional employees, guards, and
supervisors as defined in the Act. The parties were signatory
to a collective-bargaining agreement effective by its terms
from September 1, 1986, to August 31, 1989. The agreement
contains a grievance procedure, culminating in an arbitration
provision for any unresolved disputes between the parties.
In early 1989, Elsie Pascoe, a unit employee complained
to Kenneth O’Neil, Respondent’s president, about a reduction
in her hours. O’Neil thereafter investigated this complaint,
and on March 2, filed a grievance with the Employer on be-
half of Pascoe as well as three other employees, entitled
‘‘non-voluntary reduction of work hours.’’
Subsequently, various steps in the grievance procedure
were complied with, which resulted in some employees other
than Pascoe, having their hours restored. On May 22 O’Neil
filed a demand for arbitration, asserting that the Employer
had violated the contract by reducing the normal work hours
of unit employees, and requesting that all employees affected
be reinstated to their normal hours and be compensated for
their loss in pay. Although the grievance refers to ‘‘employ-
ees affected’’ O’Neil testified that the arbitration demand
was made on behalf of Pascoe only. A copy of this arbitra-
tion demand was sent to the District Office of American Fed-
eration of Government Employees (the National or AFGE)
located in New Brunswick, New Jersey.
On May 31, the American Arbitration Association (AAA)
sent to the parties a letter confirming the filing of a griev-
ance, along with a list of arbitrators to be selected.
Additionally, on February 9, 1989, O’Neil filed a griev-
ance with the Employer concerning the elimination of posi-
tions of certain employees who were out on leave. This
grievance was also processed, not successfully resolved, re-
sulting in a demand for arbitration filed by O’Neil as presi-
dent of Respondent, asserting that the Employer violated the
contract by eliminating positions of employees on sick leave.
Once again, although the demand does not name any specific
employees, O’Neil testified that the demand was filed on be-
half of employees Hector Gunaratne and Charles Irizarry.
Subsequently, an arbitrator was selected for this arbitra-
tion, which was scheduled to be heard on June 6.3
In late May 1989, AFGE placed Respondent under trustee-
ship. O’Neil and its other officers were removed from their
positions. Derrick Thomas, AFGE’s National representative
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Respondent had an office on the premises of the Employer.
5 O’Neil also told Thomas that copies of all grievances and papers
are sent to AFGE’s District Office. Thomas asserts however that he
did look in the District’s offices, and could not find copies of the
grievances.
for the Second District, who had since 1987 been assigned
to assist Respondent’s officials with various matters concern-
ing the Employer, assumed responsibility as trustee for run-
ning the Local. At the time, O’Neil asked Thomas what was
going to happen with the pending grievances. Thomas re-
sponded that he would handle them.
On the day that Thomas took over, he noticed that most
of the files were missing from the Local’s office,4 and there
appeared to have been a break in. Thomas asked O’Neil
about the files, and O’Neil disclaimed any knowledge of
what had happened to them.
Shortly thereafter, Thomas requested a postponement of
the previously scheduled June 6 arbitration concerning the
elimination of positions. By letter dated June 5, the AAA
confirmed such a postponement and stated that the parties
should apprise the office of further developments.
Meanwhile, O’Neil after being removed as president of
Respondent, formed North Shore and filed a petition with the
Region dated June 2 in Case 29–RC–7367 on behalf of
North Shore to represent the Employer’s employees.
Pursuant thereto, an election was conducted on September
resulting in a certification of North Shore as the collective-
bargaining representative of the unit previously represented
by Respondent, on September 25.
Meanwhile, as noted above, Thomas had asked in June to
postpone the arbitration scheduled for June 6, with respect to
elimination of positions. Thereafter Thomas made no effort
to reschedule the hearing. Thomas testified that he did not
have the files, and he needed time to find out what was
going on with respect to that grievance.
Pascoe’s grievance as noted had not as yet been given an
arbitration date, although Respondent had filed for arbitra-
tion, and a list of arbitrators had been sent to the parties.
Pascoe contacted Thomas in July and August and asked
about her grievance. Thomas replied that things were still in
disarray, but that he would speak with Flora Doty, the em-
ployer’s director of human resources about Pascoe’s griev-
ance.
Subsequently, Thomas spoke to Doty about Pascoe and
was informed that the Employer viewed the cutting of
Pascoe’s hours to be legal. Thomas notified Pascoe of his
call to Doty, and told her that Respondent still intended to
pursue her grievance, but that records were still missing.
Pascoe became angry and threatened to go to the Labor
Board if she did not get action from Respondent. According
to Thomas, he did not know that Pascoe’s case had been
scheduled for arbitration, since he did not have the files.
However, on or about August 1, a bill from the AAA was
sent to Respondent requesting payment to the AAA for initial
fees regarding the arbitration request concerning the reduc-
tion in hours. While this grievance concerned Pascoe, as
noted, her name does not appear on the request for arbitra-
tion. O’Neil received the invoices, as he apparently was still
getting mail addressed to Respondent, although he had been
removed as president. O’Neil gave the invoices to Thomas,
which reflected that two previous invoices had been sent to
Respondent for payment. O’Neil asked Thomas why the in-
voices was not paid, and Thomas did not respond.
Neither Thomas nor Respondent took any further action on
Pascoe’s grievance or the arbitration. On August 1, and again
on December 6, the AAA sent a letter to the parties request-
ing information as to the status of the case. Respondent did
not reply to the AAA, nor did it notify Pascoe as to the sta-
tus of her arbitration.
As for the elimination of positions grievance concerning
Irizarry and Gunaratne, as noted above, the scheduled arbitra-
tion was postponed at the request of Thomas. Respondent,
however, did not notify either Gunaratne nor Irizarry that
their arbitration had been postponed. Both Gunaratne and
Irizarry spoke to Thomas about their grievances, after
O’Neil’s removal as president. Thomas told them that he
would be looking into their grievances but that records were
still missing, Respondent’s finances were in disarray, and
those matters had to be straightened out before it could pro-
ceed in a normal fashion. Subsequently, Gunaratne who had
retained a copy of his grievance, gave Thomas a manila fold-
er containing matters pertaining to his grievance.
Thomas, after reading the file, met with Doty on behalf of
Gunaratne. Doty insisted that the Employee had not violated
the contract in its dealings with Gunaratne. According to
Thomas, he, after speaking with Doty had some doubt about
the validity of Gunaratne’s claim, but he asserts that he told
Doty that the matter was not settled and would be pursued.
Thomas admits that he never told Gunaratne about his con-
versation with Doty, nor that he had some doubts about
Gunaratne’s claim. On the day of the election, September 7,
Gunaratne asked Thomas what had happened with his griev-
ance. Thomas replied, ‘‘I don’t know.’’
As for Irizarry, apparently Thomas did not discuss his
grievance with Doty. Thomas asserts that he did not have the
files, and claims that he asked O’Neil on various occasions
if he had copies of the files, and O’Neil claimed that he did
not.5
In August, Irizarry asked Thomas about his grievance, and
added that he was leaning towards voting for AFGE in the
pending election. Thomas told Irizarry that it didn’t matter
who Irizarry intended to be for, but Respondent was going
to represent him and see to it that he got a fair dial.
On the day of the election, Irizarry confronted Thomas and
told him that Respondent was a lousy union because they
never followed up on his grievance. Thomas replied that
there was nothing he could do. After the ballots were count-
ed, showing North Shore as the winner of the election,
O’Neil approached Thomas and asked about the status of the
arbitrations. Thomas replied, ‘‘You won, isn’t that enough.’’
Thomas also testified that during the period after the trust-
eeship and prior to the certification, Respondent could not re-
schedule the arbitration, since then its finances were ‘‘in dis-
array,’’ and there was no money to take cases to arbitration.
However, Thomas admits that during the period from June
to September 25, Respondent was still receiving dues from
the Employer’s 475 employees pursuant to the checkoff
clause in the contract. Thomas explains, however, that these
money were used to pay for past due per capita taxes that
Respondent owed to AFGE, and could not be used to pay
for arbitrations.
649GOVERNMENT EMPLOYEES LOCAL 888 (BAYLEY-SETON)
On or about October 13, O’Neil on behalf of North Shore
met with representatives of the Employer. O’Neil mentioned
that there were some outstanding grievances and arbitrations
scheduled, and wanted to discuss them. The Employer took
the position that it would not discuss the prior grievances
with North Shore, nor would it recognize or participate in
any arbitrations previously scheduled, since they had oc-
curred under the old contract, at a time when the employees
were represented by Respondent and not by North Shore.
Thereafter, the instant charges were filed by Gunaratne,
Pascoe, and Irizarry on November 6, and 13 and January 9,
1990, respectively.
According to Thomas, after receiving correspondences
from the AAA in early November and December concerning
the pending arbitrations, he spoke with his National vice
president, Rita Mason, about the matter. After checking with
AFGE’s General Counsel, Mason informed Thomas that
since Respondent was no longer the exclusive representative
of employees at Bayley-Seton Hospital, with no collective-
bargaining agreement in force, it had no legal obligation to
pursue the grievances. Additionally, Thomas was instructed
to so advise the AAA of the newly certified Union and that
future dealings should be with North Shore with respect to
these matters.
By this time, Gunaratne’s charge had been filed with the
Board. Thus, by letter dated December 20, from Thomas to
the Region, he expressed Respondent’s position with regard
to its representation status concerning Gunaratne’s case, and
as Thomas testified, this position applies to all of the griev-
ances involved herein. The letter asserts that as a result of
the election, Respondent ‘‘lost its standing as the exclusive
representative for bargaining unit employees at Bayley-Seton
Hospital.’’
The letter further asserts that all future inquiries concern-
ing the grievance should be made to O’Neil and to North
Shore, consistent with Respondent’s view that North Shore
as the current exclusive representative of the employees, is
responsible for the processing of any grievances. A copy of
this letter was sent to and received by O’Neil.
Thomas admits that he did not notify any of the three
grievants or charging parties of Respondent’s position in this
regard, or that Respondent had requested that their arbitration
hearings be postponed.
III. ANALYSIS
The General Counsel argues that Respondent has arbitrar-
ily refused to process the grievances of the three charging
parties, both before and after the representation election and
the resultant certification of North Shore as the representative
of the unit employees. Prior to the certification, the General
Counsel contends that Respondent’s representation of the
employees was violative of the Act because its misled the
grievant about their cases, and failed to adequately inform
them of the status of such cases. The General Counsel views
such representation as a ‘‘willful failure to pursue the griev-
ances, and therefore perfunctory.’’ Linden Maintenance
Corp., 280 NLRB 995, 996 (1986).
However, I do not deem it necessary to pass upon the
General Counsel’s position in this regard, since I am con-
vinced that Respondent’s postcertification conduct is viola-
tive of its duty to represent employees. Since this finding,
and the remedy that I shall recommend, adequately remedies
the violations found, I do not believe that it is essential to
decide whether Respondent’s precertification conduct was
unlawful.
Turning to Respondent’s actions subsequent to the certifi-
cation of North Shore, it is undisputed that it thereafter re-
fused to continue to process the grievances of the three
grievants herein. It is noteworthy and also not in dispute that
Respondent had determined during the term of the collective-
bargaining agreement that these grievances had merit, and
had requested arbitration with respect to both grievances.
The sole reason that Respondent now has refused to con-
tinue to process and arbitrate these grievances, is the inter-
vening certification of North Shore, as the collective-bargain-
ing representative of the Employer’s employees in the unit.
Respondent contends that as a result of this certification, it
is no longer the exclusive representative of the employees in
the unit, and it no longer has a duty of fair representation
towards these employees. It further asserts that North Shore
as the collective-bargaining representative, since September
25, has the sole obligation and responsibility to process these
grievances. I do not agree, and find Respondent’s defense to
be unpersuasive.
Federal court cases, citing Supreme Court precedent, have
consistently required employees to arbitrate grievances, not-
withstanding the fact that the Union has been decertified,
UAW v. Telex Computer Products, 816 F.2d 519 (10th Cir.
1987); U.S. Gypsum v. Steelworkers, 384 F.2d 38 (3d Cir.
1967); Operating Engineers Local 368 v. Western Electric,
359 F.Supp. 651, 654 (D.N.J. 1973); or has otherwise lost its
majority status. John Wiley & Sons v. Livingston, 376 U.S.
543 (1964).
Thus, the obligation to arbitrate grievances survives expi-
ration of the contract, where (as here) the dispute arose dur-
ing the contract term, the grievance procedure had com-
menced and arbitration proceedings had not yet begun before
termination. Nolde Bros. v. Bakery Workers, 430 U.S. 243,
251 (1977); Auto Workers v. Telex, supra.
‘‘Decertification does not retroactively obliterate contract
rights. Events which may change relations between and
among employer, union, and employees may impact but do
not destroy the right to redress arising under and relating to
a valid preexisting contract.’’ Telex, supra at 523.
The duration in time of the substantive rights (under
the contract) themselves is not affected by decertifica-
tion. Decertification cannot ordinarily extinguish sub-
stantive rights. . . . This result obviously is called for
as to those substantive rights which arose under the
contract and ripen into some relief which becomes op-
erative prior to decertification. Such grievances are ones
which arose under a contract and for breach of which
effective relief was available prior to decertification.
With respect to grievances, relief for which is operative
up to the time of decertification the Union clearly has
the right to assert them. [U.S. Gypsum, supra at 45, 46.]
See also footnote 5 of the Supreme Court’s Wiley decision,
where it held that ‘‘the fact that the Union does not represent
a majority of an appropriate unit in Wiley does not prevent
it from representing those employees who are covered by the
agreement which is in dispute and out of which Wiley’s duty
to arbitrate arose.’’ 376 U.S. at 545.
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 I would also note that arbitration of both grievances was re-
quested by the Respondent and an arbitration scheduled on one of
the grievances, also during the contract’s term.
While the above authority dealt with Section 301 proceed-
ings to compel arbitration, the Board has taken a similar
view of the obligation of an employer to arbitrate grievances
subsequent to the expiration of a collective-bargaining agree-
ment. In Indiana & Michigan Electric Co., 284 NLRB 53
(1987), the Board applied the analysis of Nolde, supra, to
8(a)(5) cases involving such refusals to arbitrate postcontract
grievances. Thus, arbitration will be compelled when the par-
ties’ agreement does not expressly or by implication negate
the presumption that the contractual obligation to arbitrate
grievances arising under the contact extends to postexpiration
disputes. Id. at 59. See also Uppco Co., 288 NLRB 937, 938
(1988). The grievance procedure and arbitration clauses in
the expired contract herein are broad, and contain no lan-
guage which will negate the presumption of survivability,
particularly where as here the acts complained of, as well as
the initial grievances were filed during the term of the agree-
ment.6
Thus, under Indiana & Michigan, supra, the Employer
would be obligated to arbitrate these grievances. I do not be-
lieve that the subsequent decertification of Respondent, re-
lieves the Employer of that obligation. In Missouri Portland
Cement, 291 NLRB 1043 (1988), the Board was confronted
with an employer’s refusal to continue to process a grievance
with a union, because it had lawfully closed its facility, ter-
minated employees, and reopened with a new work force.
Therefore, since the bargaining unit no longer existed, and
the union was no longer the exclusive representative of its
employees, the employer argued that it no longer was obli-
gated to deal with the union concerning grievances. The
Board disagreed, concluding that since these grievances were
pending at the time of the dissolution of the unit, the union
continued to represent the former unit employees with re-
spect to these grievances, notwithstanding the union’s loss of
status, as exclusive representative of the employer’s employ-
ees.
Subsequent to Missouri Portland, supra, the Board consid-
ered specifically the question of the effect of a new collec-
tive-bargaining representative upon the duty to arbitrate
under Indiana & Michigan principles. In Arizona Portland
Cement Co., 302 NLRB 30 (1991), the newly certified union
sought to compel arbitration of grievances which the em-
ployer had agreed to arbitrate with the prior representative.
The Board did not find the employer therein had consented
to arbitrate the grievances with the newly certified union,
since the agreement to arbitrate under the expired contract
was with the previous union representative. The Board cited
Missouri Portland, supra, as holding that an employer is ob-
ligated to ‘‘complete unfinished business, so to speak,’’ (em-
phasis supplied), by meeting with the former representative
of the employees over grievances that had arisen at a time
when the employer still had an obligation to recognize that
representative. The Board observed significantly that the pre-
vious representative, unlike in the instant case, had not filed
charges in that case. Thus, it appears that had the previous
representative filed charges, as here, the Board would have
followed Missouri Portland, supra; Wiley, supra; and Telex,
supra, and ordered the employer therein to arbitrate the
grievances to which it had previously agreed, with the prior
representative.
Thus, I conclude that the Employer in the instant matter
would be obligated to ‘‘complete unfinished business,’’ Mis-
souri Portland, supra, and arbitrate the grievances with Re-
spondent to which it had agreed, and which had arisen at the
time their contract was in force.
I would also note that Arizona Portland, supra, as well as
Telex, supra, cautioned against potential problems of having
two representatives simultaneously representing the same em-
ployees. However, I do not believe that these concerns are
warranted in the present situation. Thus, I see no potential
conflict since North Shore and its president, O’Neil (also Re-
spondent’s former president), are fully supportive of the em-
ployees’ grievances, and in fact have attempted, albeit unsuc-
cessfully to discuss these matters with the Employer and to
force the Employer to arbitrate the grievances with North
Shore. Since the Employer is not obligated to arbitrate the
grievances with North Shore, Arizona Portland, supra, and is
at present refusing even to discuss these matters with North
Shore, it is not likely that having to arbitrate the grievances
with Respondent would produce a conflict in representation
or be destructive of industrial peace. Indeed, it is conceivable
that either the grievant, Respondent, or perhaps even both
would decide to utilize the assistance of O’Neil in connec-
tion with the arbitrations, since O’Neil as Respondent’s
former president filed the underlying grievances and is pre-
sumably most familiar with the facts concerning such griev-
ances.
Having concluded that the Employer is obligated to arbi-
trate these grievances with Respondent, the next question is
whether Respondent is therefore obligated to continue to pur-
sue them. I believe that the answer must be in the affirma-
tive. Thus, since Respondent has the right to continue to
process these grievances through the arbitration stages, it fol-
lows that it has also the duty to continue to do so, and that
the decertification of Respondent is not a defense to its fail-
ure to do so. See U.S. Gypsum, supra, where the court of ap-
peals opinion repeatedly equated the right of the Union to
pursue claims of employees with its corresponding duty to
do so under the duty of fair representation. See id. at 45 and
46.
Indeed as in Telex, supra, and discussed by the court, the
contract provides for rights which run directly to Respondent,
such as payment of dues through checkoff. I am confident
that had the Employer checked off dues and failed to remit
same to Respondent, in violation of the contract, Respondent
would have no hesitation in seeking arbitration of this
breach, notwithstanding its subsequent replacement as collec-
tive-bargaining representative. I see no valid reason why Re-
spondent should be able to refuse to process a grievance to
arbitration, for the benefit of employees, where it initially
agreed to do so and in fact started the process, merely be-
cause it no longer represents the employees for future bar-
gaining. This is the critical distinction which Respondent
overlooks. The matters in dispute here involve grievances
which were in existence and in fact had already been in the
arbitration process, at the time the contract was in force and
Respondent was still the exclusive representative of the em-
ployees. See Arizona Portland, supra at fn. 5. Thus, in my
view, Respondent is obligated to ‘‘complete unfinished busi-
651GOVERNMENT EMPLOYEES LOCAL 888 (BAYLEY-SETON)
7 I note that Respondent has made no assertion that it failed to pur-
sue these claims because of any doubts about the merits of any of
the grievances. Indeed, as noted, Respondent had originally deter-
mined that the grievances warranted going to arbitration, and had in
fact requested that both grievances be heard by an arbitrator.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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.
ness,’’ Arizona Portland, supra at 30, and to continue to ar-
bitrate the claims of the grievant herein.
By failing to do so, solely7 because it had been replaced
as collective-bargaining representative, Respondent has acted
arbitrarily and violated Section 8(b)(1)(A) of the Act. I so
find.
CONCLUSIONS OF LAW
1. Respondent, Local 888, American Federation of Gov-
ernment Employees, AFL–CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
2. Bayley-Seton Hospital is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act, and a health care institution within the meaning of Sec-
tion 2(14) of the Act.
3. Since on or about September 25, 1989, Respondent has
arbitrarily failed to process the grievances of Hector
Gunaratne, Elsie Pascoe, and Charles Irizarry, because these
employees and other employees in the unit had voted to be
represented by another labor organization and because said
other labor organization had been certified as the collective-
bargaining representative of the employees in the unit, not-
withstanding that the grievances of these employees arose
during and under the terms of a collective-bargaining agree-
ment between Respondent and the Employer, at a time when
Respondent was the exclusive representative of said employ-
ees.
4. These violations are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action necessary
to effectuate the purposes and policies of the Act.
The General Counsel has expressly disclaimed any request
for payment of backpay to the employees by Respondent, but
has requested that Respondent be ordered to pay legal fees
to independent counsel to represent the employees in an arbi-
tration proceeding. Teamsters Local 186 (United Parcel Serv-
ice), 203 NLRB 799 (1973), enfd. in part and remanded in
part 509 F.2d 1075 (9th Cir. 1975), clarified on remand 220
NLRB 35 (1975).
I agree with the General Counsel that such an order is ap-
propriate in the circumstances herein. In view of the fact that
Respondent is no longer the collective-bargaining representa-
tive of the employees in the unit, I find it questionable
whether it will pursue the arbitration with sufficient vigor,
even when ordered to do so by the Board. Therefore, in
agreement with the General Counsel, I shall recommend that
Respondent be ordered to permit the grievant to be rep-
resented at the arbitration by their own counsel and that Re-
spondent pay the reasonable attorney’s fees of such counsel.
Linden Maintenance, supra at 997; United Parcel Service,
supra; Glass Blowers Local 106 (Owens-Illinois, Inc.), 240
NLRB 324, 325 (1979).
A second remedial problem involves the current status of
Respondent. According to Thomas, Respondent is now dis-
banded. Since Respondent’s only shop was the Employer,
after the certification, Thomas asserts that AFGE removed
the Local from the National, cancelled the insurance bond,
and notified the IRS and the Department of Labor that the
Local was no longer in AFGE. Moreover, all money in the
Local’s account were transferred to the National. Respondent
also had an office on the Hospital’s grounds. The record
does not establish what happened to that office.
The General Counsel contends that the AFGE should be
ordered to comply with the Order herein, should the above
facts render Respondent unable to do so. I agree.
The record reveals that AFGE placed Respondent under
trusteeship in May 1989, and in effect was in charge of oper-
ating the Union through Thomas, its National representative,
during the time that the unfair labor practices found herein
were committed. Thus, in my view, AFGE was an alter ego
of Respondent since late May 1989, and is responsible for
remedying the unfair labor practices committed by Respond-
ent. Moreover, I would note that the decision not to pursue
the arbitration claims of the grievant herein, because of the
certification of North Shore, was in fact made by AFGE
through Rita Mason, AFGE’s vice president. In these cir-
cumstances, it is appropriate to impose liability on AFGE to
remedy the violations found herein. Plumbers Local 589 (L
& S Plumbing), 294 NLRB 616 (1989).
Additionally, since it appears that Respondent probably
does not have a local office any longer, I shall recommend
that it post the appropriate notices at AFGE’s District Office
in New Brunswick, New Jersey. It is not necessary to order
mailing of the notices to the employees employed by the
Employer, since these employees will be adequately apprised
of the notice by the provisions requiring Respondent to sign
and mail copies of the notice to the director for posting at
the Employer’s premises, if the Employer is willing. How-
ever, if the Employer is not willing to post the notice, then
it would be appropriate to order Respondent to sign and mail
copies of the notice to all members of the bargaining unit
employed by the Employer.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
ORDER
The Respondent, American Federation of Government Em-
ployees, and its Local 888, their offices, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Arbitrarily refusing to process the grievances of any
employees represented by it, or formerly represented by it,
because the employees voted to be represented by another
labor organization or because the other labor organization be-
comes certified as the representatives of such employees,
notwithstanding that the grievances of the employees arose at
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If this 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.’’
a time when it was the exclusive collective-bargaining rep-
resentative of the employees.
(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 ef-
fectuate the policies of the Act.
(a) Promptly pursue the grievances of Hector Gunaratne,
Elsie Pascoe, and Charles Irizarry to arbitration in good faith
with all due diligence.
(b) Permit Gunaratne, Pascoe, and Irizarry to be rep-
resented by their own counsel at the arbitration proceedings
and pay the reasonable legal fees of such counsel.
(c) Post at AFGE’s District Office in New Brunswick,
New Jersey, and at all other places where notices to mem-
bers are customarily posted, copies of the attached notice
marked ‘‘Appendix.’’9 Copies of the notice, on forms pro-
vided by the Regional Director for Region 29, after being
signed by Respondent and AFGE’s authorized representa-
tives, shall be posted by AFGE immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by AFGE to ensure
that the notices are not altered, defaced, or covered by any
other material.
(d) Sign and mail to the Regional Director copies of the
aforementioned notice for posting at the premises of Bayley-
Seton Hospital (the Employer) if the Employer is willing. If
it is determined at the compliance stage of this proceeding
that the Employer is not willing to post, AFGE and Respond-
ent shall sign and mail copies to all employees of the Em-
ployer in the bargaining unit formerly represented by Re-
spondent.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent and
AFGE have taken to comply.