Service Employees International Union

National Labor Relations Board - Board Decisions

Jun 29, 1973

204 N.L.R.B. 696 (N.L.R.B. 1973)

696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service Employees International Union, Local 50,
AFL-CIO (Aetna Window Cleaning Co.) and Elmer
Lawson . Case 14-CB-2560
June 29, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 6, 1973, Administrative Law Judge John
G. Grey issued the attached Decision in this proceed-
ing. Thereafter, Respondent filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Service Employees Interna-
tional Union , Local 50, AFL-CIO, its officers , agents,
and representatives , shall take the action set forth in
the said recommended Order.
DECISION
JOHN G. GREGG, Administrative Law Judge: The com-
plaint herein issued on January 23, 1973, based on charges
duly filed, alleges that the Respondent Union engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act. The Respondent denies the commis-
sion of any unfair labor practices. Pursuant to notice, a trial
was held before me at St. Louis, Missouri, on March 5, 1973.
All parties were afforded full opportunity to call and exam-
ine and to cross-examine witnesses, and thereafter to submit
briefs.
Upon the entire record hereing including my observation
of the demeanor of each of the witnesses as they testified
and careful consideration of the brief filed I make the fol-
lowing:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I JURISDICTION
As alledged in the complaint and stipulated by the parties
on the record I find that Aetna Window Cleaning Company
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
I find that as alleged in the complaint Service Employees
International Union , Local 50, AFL-CIO, herein referred
to as the Respondent Union, is a labor organization within
the meaning of Section 2(5) of the Act.
II THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleges essentially that on or about Janu-
ary 5, 1973, Walter Murphy, business agent for the Respon-
dent, (a) told employees that their grievances would not be
processed until the unfair labor practice charge filed with
the National Labor Relations Board was withdrawn; (b)
told employees that a new shop steward would not be elect-
ed until the unfair labor practice charge filed with the Na-
tional Labor Relations Board was withdrawn; (c) refused to
conduct an election for a new shop steward among the
Employer's employees until the unfair labor practice charge
filed with the National Labor Relations Board was with-
drawn; and (d) refused to process employees' grievances
until the unfair labor practice charge filed with the National
Labor Relations Board was withdrawn; and that by the
foregoing the Respondent restrained and coerced employ-
ees in the exercise of rights guaranteed in Section 7 of the
Act, thereby engaging in unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
Section 2(6) and (7) of the Act.
Elmer Lawson, an employee of the Aetna Window Clean-
ing Company as a window cleaner, and a member of the
Respondent Union herein for about 7 years, testified that in
August 1972 when the men were working out at Linden-
wood College they were docked by their boss, Paul Krause,
for a full day's pay which Krause stated they had not
worked. Walter Murphy, the union business representative
was subsequently called by telephone and he arranged to
meet the men at Lindenwood College but never showed up.
Lawson stated that the men also took this matter up with
Frank Vogler, the shop steward on the job. Vogler said he
would talk to Paul Krause but never did.
Lawson testified further that subsequently the men want-
ed to get another shop steward so as to get some kind of
representation. They requested Murphy to hold a meeting
to elect a shop steward in place of Vogler. According to
Lawson, Murphy would agree that Vogler was not doing the
men any good and they needed to elect another shop stew-
ard. However, according to Lawson, Murphy never came to
the shop to hold an election.
Lawson testified that around the last of December 1972
it appeared that the Employer had been working two men
with less seniority while men with more seniority were out
of work for 2 weeks.
Lawson testified that some of the men met with shop
steward Vogler and asked whether he knew that men with
less seniority were being worked while some with more sen-
204 NLRB No. 120
SERVICE EMPLOYEES INTERNATIONAL UNION
iority were without work . According to Lawson , Vogler stat-
ed that he did not know this was happening . After checking,
Vogler came back to the men and said "There is nothing
that I can do."
Following this , Lawson and other employees went down
to the Title Guarantee Building to complain to the Union
about Paul Krause 's latest activity, to get backpay for the
time Krause worked men with less seniority , and to get an
election for another shop steward . One employee , Conner,
also complained that he had backpay coming from a raise
he never received . Lawson stated that Murphy agreed with
them , that they needed someone to represent them and he
called Paul Krause and made an appointment to see him.
Murphy agreed to meet the men at the shop the next morn-
ing to get the whole thing resolved.
According to Lawson the next morning Murphy did not
show up to meet with the men to resolve the problem. Later
Lawson and some of the men caught up with Murphy in the
coffeeshop and asked what had happened . Murphy said he
had been tied up in traffic, Lawson then said "That seems
to be a habit of yours . Well, did you find out anything about
our backpay?" Murphy then said he had not but he was
working on it. At this point Lawson told Murphy that he
was going to the Labor Board. Lawson then filed his origi-
nal charge with the Board dated December 20, 1972.
Lawson , continuing his testimony , stated that after filing
his December 20 charge with the Labor Board he thereafter
on January 4, 1973 , had further conversations with Murphy
as part of a group of Aetna employees who met with Mur-
phy at the union hall to discuss the matter of electing a new
shop steward and backpay . Murphy agreed to hold an elec-
tion for shop steward . Murphy was at the shop the next
morning and when Lawson queried him about the backpay
he said he was still working on that . When Lawson queried
him concerning the election of a shop steward he agreed to
come to the shop at 7 o 'clock the next morning.
According to Lawson , Murphy showed up the next morn-
ing and Lawson met with him at 5 minutes before 7 o'clock.
Present at the time were a number of Aetna employees.
According to Lawson, Murphy asked to speak with Lawson
and they moved away from the other men. Murphy then
told Lawson that his lawyer had advised him not to elect or
appoint a new shop steward until Lawson dropped the
charge against Murphy at the Labor Board.
Lawson stated that he asked Murphy to repeat this and
Murphy did . Lawson then summoned Conner and asked
him to hear what Murphy had to say. Lawson asked Mur-
phy to repeat his statement for Conner. Murphy then told
Conner that he could not elect Lawson or anyone else or
appoint anyone shop steward until the charges against him
at the Labor Board were dropped.
Lawson testified that he then advised Murphy he would
not do anything until he consulted the Board attorney and
was advised on what to do.
Lawson stated that Murphy was then queried about back-
pay and Murphy stated that as soon as a new shop steward
was elected Murphy would let him work on that . No elec-
tion for shop steward was held on January 5, 1973.
Lawson testified further that later, around February 1 the
men went to the union hall and again complained about
backpay and "Nobody was doing anything for us or any-
697
thing ." At this time Sorbie , the union president, told them
he would meet with them and management the next day to
settle the matter . Within a day the grievances were finally
settled and Krause agreed to pay the backpay. An election
for shop steward was finally held on February 13, 1973, with
Vogler defeating Lawson for the post.
There was testimony by Cledis Conner , a window clean-
er, an employee of Aetna Window Cleaning and a member
of the Respondent Union. Conner's testimony corroborated
Lawson 's testimony including Lawson 's version of the inci-
dent with Murphy on January 5 , 1973, stating that when
Lawson called him over to hear what Murphy had to say
Murphy said that "he couldn 't elect a shop steward or ap-
point one until the charges were dropped at the Labor
Board."
Finally there was testimony of record by Walter Murphy,
business representative for the Respondent Union, respon-
sible for the enforcement of the collective -bargaining con-
tract between Aetna Cleaning and the Union . Murphy
pointed out that the contract included a provision regarding
the selection or appointment of stewards which provided
that union stewards shall be appointed by the Union.
Concerning the happenings of January 5, 1973 , Murphy
stated he went to the shop a little before 7 a .m. with the
intention of discussing the matter of the shop steward. Mur-
phy testified he told Lawson that he could not have an
election of a shop steward at that time . He gave no reason.
Q. Did you at any time mention the unfair labor
practice charge which had been filed?
A. No, I didn't.
Murphy did not recall talking with Conner that morning.
Murphy stated that he did speak with Lawson aside from
the other men who were all around within 5 or 10 feet of
each other . Murphy also denied mentioning to any of the
employees that he had been advised by his lawyer on the
matter . He denied mentioning anything about the unfair
labor practice charge . He denied mentioning that he would
not hold an election for shop steward until the unfair labor
practice charges were dropped . He also denied telling any
of the employees that he would not process their grievances
until the unfair labor practices were dropped.
Analysis, Discussion, Findings and Conclusions
Based on my observation of the demeanor of the witness-
es as they testified I credit the testimony of Lawson whom
I found straightforward and sincere in his testimony. I cred-
it his version of the discussions with Murphy and I do not
credit Murphy's denials. Lawson 's testimony was basically
corroborated by the testimony of Conner who also im-
pressed me as straightforward and sincere . I simply do not
credit Murphy 's statement that at no time after the filing of
the charges before the Board in his discussions with the men
referred to hereinabove , did he mention the unfair labor
practice charges. I find that the statements by Murphy on
January 5, 1973, were indeed made by Murphy as alleged
in the complaint and that Murphy told employees that their
grievances would not be processed until the unfair labor
practice charge filed with the Board was withdrawn and that
a new shop steward would not be elected until the unfair
labor practice charge filed with the Board was withdrawn.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find also from the record and as alleged in the complaint
that on or about January 5, 1973, Murphy refused to con-
duct an election for a shop steward until the unfair labor
practice charge filed with the Board was withdrawn, and
that on or about that date Murphy refused to process em-
ployee grievances until the unfair labor practice charge filed
with the Board was withdrawn.
By the foregoing acts it is clear that the Respondent
Union did restrain and coerce employees in the exercise of
rights guaranteed in Section 7 of the Act and thereby en-
gaged in unfair labor practices affecting commerce within
the meaning of Section 8(b)(1)(A) of the Act. Dominicks
Finer Foods, Inc., 188 NLRB No. 138; Amalgamated Meat
Cutter, 181 NLRB 773. Riley Stoker Construction Company,
197 NLRB No. 115.
The Respondent Union argued on the record that even if
the allegations of the complaint were admitted they would
indicate no more than an isolated instance of an 8(b)(1)(A)
violation and that in view of the fact that there was an
election of a shop steward subsequent to the conversation
and a complete adjustment of the grievances involved no
appropriate relief should be forthcoming. I do not agree.
Notwithstanding the fact that the Union adequately repre-
sents its members , the initial refusal to represent members
because they file unfair labor practice charges with the
Board is a violation of Section 8(b)(1)(A).
The Board has stated that no responsibility of a union to
protect its members' interests, no duty of fair representa-
tion, no "legitimate discretion" to process or not to process
a grievance is justification to impede, deter, or interfere with
an employee's right to come to the Board with an unfair
labor practice charge. Association Of Packers & Drivers
Union (Guy's Foods, Inc.) 188 NLRB No. 85.
CONCLUSIONS OF LAW
1. Aetna Window Cleaning Company is an employer
within the meaning of Section 2(2) of the Act engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Service Employees International Union, Local 50,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By telling employees that their grievances would not
be processed and that a new shop steward would not be
elected until the unfair labor practice charge filed with the
National Labor Relations Board was withdrawn, and by
refusing to conduct an election for a new shop steward and
to process employee grievances until the unfair labor prac-
tice charge filed with the National Labor Relations Board
was withdrawn, rights guaranteed in Section 7 of the Act
and thereby committed unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
Sections 2(6) and (7) of the Act.
The Remedy
Having found that the Respondent engaged in certain
unfair labor practices it will be recommended that it be
ordered to cease and desist therefrom and that it take cer-
tain affirmative action designed to effectuate the policies of
the Act.
In my view in the posture of this case the protection of
the employees' statutory right to access to the Board will
best be assured by requiring the Respondent Union to post
a notice.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
Service Employees International Union, Local 50, AFL-
CIO, its officers, agents, and representatives, shall:
1. Cease and desist from restraining and coercing em-
ployees of Aetna Window Cleaning Company in the use of
the processes of the National Labor Relations Board by;
informing them that their grievances would not be pro-
cessed nor election of a new shop steward held until unfair
labor practice charges filed with the Board were withdrawn;
refusing to conduct an election for a new shop steward and
refusing to process their grievances until unfair labor prac-
tice charges filed with the Board were withdrawn.
2. Take the following affirmative action:
(a) Post at its business office and meeting place copies of
the attached notice marked "Appendix. "2 Copies of said
notice, on forms provided by the Regional Director for
Region 14, after being duly signed by Respondent's repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said no-
tices are not altered, defaced, or covered by any other mate-
rial.
(b) Forward signed copies of said notice to the Regional
Director for posting by Aetna Window Cleaning Company,
it being willing, at all locations where notices to employees
are customarily posted.
(c) Notify the Regional Director for Region 14, in writ-
ing, within 20 days from the date of receipt of this Decision
what steps the Respondent has taken to comply herewith.
' 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 obj ections thereto shall be deemed
waived for all purposes.
2 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."
SERVICE EMPLOYEES INTERNATIONAL UNION
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 having found after a
trial that we violated Federal law by restraining and coerc-
ing employees of Aetna Window Cleaning Company in the
use of the processes of the National Labor Relations Board,
we hereby notify the employees of Aetna Window Cleaning
Company that:
WE WILL NOT restrain or coerce employees of Aetna
Window Cleaning Company in the use of the processes
of the National Labor Relations Board by informing
them that we would not process their grievances nor
hold an election for shop steward and by refusing to
699
process grievances and to hold elections , until charges
filed with the National Labor Relations Board were
withdrawn.
Dated By
SERVICE EMPLOYEES INTERNA-
TIONAL UNION LOCAL 50,
AFL-CIO
(Labor Organization)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its porvisions may be direct-
ed to the Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri, 63101, telephone 314-622-4167.