Service Employees Local 87 (Cervetto Maintenance)

National Labor Relations Board - Board Decisions

Dec 11, 1992

309 N.L.R.B. 817 (N.L.R.B. 1992)

817
309 NLRB No. 132
SERVICE EMPLOYEES LOCAL 87 (CERVETTO MAINTENANCE)
1 On September 3, 1992, Administrative Law Judge Michael D.
Stevenson issued the attached decision. The General Counsel filed
exceptions. The Respondent thereafter filed a statement that it did
not oppose the modification of the judge’s recommended Order
sought by the General Counsel in exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The judge found that the General Counsel proved an ‘‘intentional
failure to act on an apparently meritorious grievance.’’
3 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.’’
Service Employees’ International Union, AFL–CIO,
Building Service Employees’ Union, Local 87
(Cervetto Maintenance) and Angela Rangel.
Case 20–CB–8744
December 11, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The sole issue presented for Board consideration in
this case1 is whether the judge erred in failing to rec-
ommend a provisional make-whole remedy for the Re-
spondent’s unlawful refusal to process the grievance of
Charging Party Angela Rangel. The Board has consid-
ered the decision and the record in light of the excep-
tions and brief and has decided to affirm the judge’s
rulings, findings, and conclusions, and to modify the
remedy for the reasons which follow.
At the unfair labor practice hearing before the judge,
the Respondent exercised its option under Rubber
Workers Local 250 (Mack-Wayne Closures) (Mack-
Wayne II), 290 NLRB 817 (1988), to defer litigation
of the merits of Rangel’s grievance to the compliance
stage of this proceeding. Based on the Respondent’s
action, the judge denied the General Counsel’s request
to include a provisional make-whole remedy in the rec-
ommended Order. In exceptions, the General Counsel
contends that the judge has misconstrued Board prece-
dent in refusing to recommend the requested remedy.
The Respondent apparently concurs in the General
Counsel’s position.
We agree with the parties that the recommended
Order should be modified. When, as in the present
case, the General Counsel has met the initial burden of
proving that an employee’s grievance was not clearly
frivolous,2 the Board will permit the respondent union
to litigate the ultimate merits of that grievance at either
the initial unfair labor practice stage or the compliance
stage of a proceeding. If the union elects to defer liti-
gation until the compliance stage, it is customary and
appropriate to include a provisional make-whole rem-
edy in the Board’s Order. See Mack-Wayne II, supra
at 822, and Rubber Workers Local 250 (Mack-Wayne
Closures) (Mack Wayne I), 279 NLRB 1074, 1075
(1986). Accordingly, we shall modify the judge’s rem-
edy to provide that: (1) the Respondent shall request
Cervetto Building Maintenance Co. to give Rangel the
vacation and overtime pay which she claims it owes
her; (2) if Cervetto refuses, the Respondent shall
promptly pursue grievance and arbitration proceedings
in furtherance of Rangel’s claim; (3) Rangel shall be
permitted her own counsel in grievance and arbitration
proceedings, if she so chooses, and the Respondent
shall reimburse her for reasonable legal fees of such
counsel; and (4) if for any procedural or substantive
reason the Respondent is unable to pursue the griev-
ance and arbitration procedure, it shall make Rangel
whole for any losses suffered from the unlawful failure
to process her grievance. Interest on any amounts
owed by the Respondent to Rangel shall be computed
in the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Service Employees’ International Union,
AFL–CIO, Building Service Employees’ Union, Local
87, Brisbane, California, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Discriminatorily refusing to process a grievance
for arbitrary reasons.
(b) In any like or related manner coercing or re-
straining employees in the exercise of rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Request Cervetto Building Maintenance Co. to
reimburse Angela Rangel for vacation and overtime
pay which she claims it owes her, and if that employer
refuses to pay Rangel as requested, promptly pursue
the grievance procedure, including arbitration, in good
faith with all due diligence.
(b) Permit Angela Rangel to be represented by her
own counsel in the grievance and arbitration proce-
dure, and pay the reasonable legal fees of such coun-
sel.
(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 grievance of Angela Ran-
gel on the merits, make Rangel whole, with interest,
for any loss of pay she may have suffered as a result
of its unlawful conduct in failing to process her griev-
ance.
(d) Post at its business offices and meeting places
copies of the attached notice marked ‘‘Appendix.’’3
Copies of this notice, on forms provided by the Re-
gional Director for Region 20, after being signed by
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates herein refer to 1990 unless otherwise indicated.
the Respondent’s authorized representative, shall be
posted by the Respondent at its business office imme-
diately upon receipt and be maintained by it for 60
consecutive days in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
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 discriminatorily or arbitrarily refuse
to process an employee’s grievance.
WE WILL NOT in any like or related manner restrain
or coerce employees in the excercise of rights guaran-
teed by Section 7 of the Act.
WE WILL request Cervetto Building Maintenance
Co. to reimburse Angela Rangel for vacation and over-
time pay which she claims was missing from her final
paycheck, and if that employer refuses to pay Rangel
as requested, WE WILL promptly pursue the grievance
procedure, including arbitration, in good faith with all
due diligence.
WE WILL permit Angela Rangel to be represented by
her own counsel in the grievance and arbitration proce-
dure, and WE WILL pay the reasonable legal fees of
such counsel.
WE WILL make Angela Rangel whole, with interest,
for any loss of pay she may have suffered as a result
of our unlawful failure to process her grievance, if it
is not possible to determine the merits of that griev-
ance through the grievance and arbitration procedure.
SERVICE EMPLOYEES’ INTERNATIONAL
UNION, AFL–CIO, BUILDING SERVICE
EMPLOYEES’ UNION, LOCAL 87
Boren Chertkov, Esq., for the General Counsel.
Stewart Weinberg, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Respond-
ent.
DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge. This
case was tried before me at San Francisco, California, on
March 30, 1992,1 pursuant to a complaint issued by the Re-
gional Director for the National Labor Relations Board for
Region 20 on September 24, and which is based on a charge
filed by Angela Rangel (Charging Party or Rangel) on Au-
gust 2. The complaint alleges that Service Employees’ Inter-
national Union, AFL–CIO, Building Service Employees
Union, Local 87 (Respondent) has engaged in a certain viola-
tion of Section 8(b)(1)(A) of the National Labor Relations
Act, as amended (the Act).
Issue
Whether Respondent’s failure to file and process a griev-
ance of its member Rangel was arbitrary, perfunctory, and a
breach of the fiduciary duty owed by Respondent to the em-
ployees it represents.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. Briefs, which have
been carefully considered, were filed on behalf of General
Counsel.
On the entire record of the case, and from my observation
of the witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS
Respondent admits that Cervetto Building Maintenance
Co. is a California corporation operating a janitorial contract-
ing service in Brisbane, California, and that at all times ma-
terial herein, Employer has been and, is now a member of
the San Francisco Maintenance Contractors Association (As-
sociation), an organization composed of employers engaged
in providing janitorial services which organization exists for
the purpose, inter alia, of representing its employer-members
in negotiating and administering collective-bargaining agree-
ments with various labor organizations. Respondent further
admits that during the calendar year ending December 31,
the employer-members of the Association referred to above,
in the course and conduct of their business operations, col-
lectively provided services valued in excess of $50,000 to
enterprises within the State of California which meet the
Board’s standards for the assertion of jurisdiction on a direct
basis. Accordingly, Respondent admits, and I find, that the
Employer is an employer within the meaning of Section 2(l4)
of the Act and engaged in commerce and in an industry af-
fecting commerce within the meaning of Sections 2(2), (6),
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent, Service Employees’ International Union,
Building Service Employees Union, Local 87 admits, and I
find, that it is a labor organization within the meaning of
Section 2(5) of the Act.
819SERVICE EMPLOYEES LOCAL 87 (CERVETTO MAINTENANCE)
2 Solorzano’s termination was timely grieved and is now awaiting
decision on its merits from an arbitrator.
3 Rangel testified in Spanish through an interpreter.
4 In light of Rangel’s inability to testify in English at hearing, a
fair question concerns the language in which Rangel was talking to
Houck and how effectively she was communicating with him. Unfor-
tunately, the record is silent on these matters.
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. The Facts
During all times material to this case, Respondent main-
tained a membership of approximately 4500 persons. In
March, Richard Leung, Respondent’s sole witness, was elect-
ed president. In the course of performing his duties as presi-
dent, Leung appointed Julio Solorzano as one of three busi-
ness agents employed by Respondent to care for and attend
to the needs of the membership. Solorzano was subsequently
terminated by Leung for incompetence and did not testify in
the case.2 It is Solorzano’s conduct as an admitted agent of
the Union which under General Counsel’s theory, constitutes
the primary focus of this case. Respondent argued at hearing,
however, that even if Solorzano’s performance of his duties
is found deficient, as Respondent itself found when it fired
Solorzano, it cannot be called to account because Rangel too
was derelict in not complaining to Solorzano until it was too
late under the terms of the collective-bargaining agreement to
grieve the matter. Under Respondent’s theory, Solorzano’s
conduct is rendered essentially irrelevant. To explore this
matter further, I turn to the record.
Angela Rangel was the sole witness for the General Coun-
sel, both in his case-in-chief, and as recalled briefly in rebut-
tal.3 Based on her unrebutted testimony, I find that for more
than 20 years, Rangel has worked as a janitress. Although
her employer has changed over the years, for all or most of
her employment, she has cleaned the same medical building
in San Francisco and continues to work there now.
Prior to April 15, Rangel worked for Cervetto Building
Maintenance (Employer), which was a member of the Asso-
ciation. The latter was party to a collective-bargaining agree-
ment with Respondent (G.C. Exh. 2).
On April 15, Employer lost the maintenance contract to
clean the medical building where Rangel worked. She re-
ceived her final paycheck which failed to include 3 weeks’
vacation pay and 8-1/2 hours of overtime pay. According to
Rangel, the missing wages amounted to about $1300.
Upon noting the discrepancy, Rangel called the Employer
and talked to Ray Houck, the Company’s accountant, to
whom she explained the problem. Houck did not testify, but
according to Rangel, he told her he would talk to the owner
Joe Cervetto.4 When Rangel called back 2 weeks later on the
next payday, Houck told her that her missing check was not
there and she should call back later.
There followed other calls from Rangel to Houck in May
and again in June, none of which were effective in obtaining
the missing wages. In June, Houck referred Rangel to her
former supervisor, David Dellanini, to obtain from him ap-
proval of Rangel’s claim for vacation and overtime pay. In
July, Rangel contacted Dellanini, explained the problem and
asked him to write a letter on her behalf, which he did. The
letter (G.C. Exh. 3) reads as follows:
Cervetto Building Maintenance July 1, 1990
100 Northhill Drive
Brisbane, Ca.
Attention: Ray
Dear Ray:
As per my conversation with Angela Rangel regard-
ing her past due sick leave and vacation pay; pay her
and the other girls, Julie and Kika whatever they have
coming form (sic) the Stonestown account. I understand
from Angela that you were waiting for me to approve
the payments. Angela also has eight and one half hours
for overtime. Also, Nelson Dornel has done work at the
French Medical Building in Nov. 1989 which he is still
waiting for and he also has work in on Stonestown that
he is still waiting for. So, please pay these people what
they are owed you have my O K.
Sincerely,
/s/ D. Dellanini
David Dellanini
On July 2, Rangel personally delivered the letter to Houck,
who assured her he would give the letter to Joe Cervetto.
On the next payday, Rangel again called Houck to ask him
if her check arrived, but he said it had not. In August or per-
haps October, Rangel was not certain, she called Houck still
again, but this time she was told he no longer worked there.
While the above series of events was unfolding, Rangel
was also attempting to get Respondent to act on her behalf.
There is uncertainty as to when she first contacted Respond-
ent, either May, as she testified, or in June, as she told the
Board agent in her affidavit. There is no disagreement that
in May or June she spoke to Solorzano regarding her missing
wages and explained the problem to him.
Solorzano promised to call Joe Cervetto about Rangel’s
missing money. There followed a series of phone calls from
Rangel to Solorzano about every 2 weeks during which time
Solorzano assured Rangel he was working on the matter.
In December Rangel left on vacation. Upon her return in
January, she discovered that her two coworkers referred to
in the Dellanini letter recited above, had received their vaca-
tion and overtime pay. One of the women told Rangel later
that Rangel didn’t receive her money because she had been
away on vacation.
When Rangel again called Solorzano to complain about
her missing wages, Solorzano professed to be surprised that
she had not been paid since her two coworkers had been paid
in November. Increasingly frustrated, Rangel complained to
Solorzano that she had been paying union dues, but that he
was not helping her. At this point, Solorzano again promised
to write a letter to Joe Cervetto, but there is no evidence he
ever did so.
Upon Rangel’s receipt of the Dellanini letter recited above,
she personally delivered it to Respondent’s offices for deliv-
ery to Solorzano. A short while after this, Rangel again
called Solorzano but he told Rangel that he was no longer
the business agent assigned to her. Nevertheless, Solorzano
promised to continue to help Rangel and even promised to
file a grievance over the issue. When Solorzano was eventu-
ally fired, there was no evidence he wrote or filed a griev-
ance, wrote any letters, made any phone calls, or did any-
thing at all on Rangel’s behalf.
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
After Solorzano had been fired for incompetency and lack
of action on the Rangel case and other cases, Leung discov-
ered that the Employer was allegedly in bankruptcy. Leung
also testified that he believed Solorzano’s replacement con-
tacted Rangel to discuss the Cervetto case with her. How-
ever, in rebuttal, Rangel denied that after July, anyone from
Respondent had contacted her, and I credit her testimony.
In conclusion, I note the following exchange between the
General Counsel and Leung on cross-examination (Tr. 52–
54:
And I believe someone may have talked to Ms. Ran-
gel, I don’t know. I did not personally.
Q. In other words, then after you discussed the situa-
tion with Solorzano where the Rangel/Cervetto matter
seemed rather vague in terms of response from
[Solorzano], you think somebody may have called Ms.
Rangel?
A. Right. At the time another business agent took
over Solorzano’s cases.
Q. And did you follow-up in terms of whether or not
that contact had been made with Ms. Rangel.
A. I was not appraised of the follow-up, no.
Q. So as far as you know, since the time that the
charge was filed in this case in August until the
present, there’s been nothing further done with regard
to Ms. Rangel’s concern about vacation pay or overtime
pay?
A. Not that I know of.
. . . .
By Mr. Chertkov:
Q. Is it the union’s position or your position that Ms.
Rangel does not have a legitimate claim for overtime
pay or vacation pay [As of today]?
. . . .
THE WITNESS: Frankly, I don’t even know about the
case enough to appraise the merits of it.
I never met with Ms. Rangel directly to go over her
case, therefore, I’m not in any position to evaluate the
merits of it.
B. Analysis and Conclusions
1. Legal principles and prima facie case
I begin by noting the duty of fair representation which Re-
spondent owed to Rangel. This duty of fair representation is
a legal term of art, incapable of precise definition. There is
no code that explicitly prescribes the standards that govern
unions in representing their members in processing griev-
ances. Whether a union breached its duty of fair representa-
tion depends upon the facts of each case. Eichelberger v.
NLRB, 765 F.2d 851, 854 (9th Cir. 1985), citing Griffin v.
Auto Workers, 469 F.2d 181, 182 (4th Cir. 1972).
The Board too has often noted and applied the duty of fair
representation. For example in Teamsters Local 337, 307
NLRB 437 (1992), the Board stated:
It is well settled that a union breaches its duty of fair
representation toward employees it represents when it
engages in conduct affecting those employees’ employ-
ment conditions which is arbitrary, discriminatory, or in
bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). It is also
well settled, however, that something more than mere
negligence or the exercise of poor judgment on the part
of the union must be shown in order to support a find-
ing of arbitrary conduct. Teamsters Local 692 (Great
Western Unifreight), 209 NLRB 446 (1974).
Thus, with these general principles in mind, I turn back to
the record to apply the law to the facts of this case which
are largely undisputed. On April 15, Rangel changed em-
ployers and found her first paycheck from her old employer
short by $1300. As I understand Respondent’s theory of de-
fense, it is as of April 15 when Rangel’s duty to make a
timely complaint to Respondent regarding her short pay at-
tached. As support for this contention, Respondent invites me
to examine the applicable collective-bargaining agreement
(G.C. Exh. 2, sec. 20.1) [Grievance Procedure], which in per-
tinent part reads as follows:
Any difference between the Employer and the Union
involving the meaning or application of the provisions
of this Agreement shall constitute a grievance and shall
be taken up in the manner set forth in this Section. A
grievance need not be considered unless the aggrieved
party serves upon the other party a written statement
setting forth the facts constituting the alleged grievance.
For a discharge case grievance, such notice must be
served within ten (10) days from the date of discharge.
Such written statement concerning any other type of
grievance must be served within fifteen (15) days of its
occurrence or the discovery thereof by the aggrieved
party. It is the intent of the parties that reasonable dili-
gence be used in the discovery and reporting of alleged
grievances so they may be adjusted or dismissed with-
out undue delay. The Employer and the Union agree to
use their best endeavors by informal conferences be-
tween their respective representatives to settle any
grievance within ten (10) days after service of such
written statement. . . . Proposals to add to or change
this Agreement shall not be arbitrable. Neither an arbi-
trator nor a panel of representatives shall have any au-
thority or power to add to, alter or amend this Agree-
ment.
As the facts reflect, Rangel did not immediately call the
Union, but waited until May or June. If Respondent is cor-
rect in its contention, then it may be entitled to dismissal be-
cause the time to file a grievance had expired by the time
Rangel contacted the Union. Before deciding this question, I
should place the issue in proper context—both legally and
factually.
To comply with its duty of fair representation, a union is
required to conduct some minimal investigation of grievances
brought to its attention. Tenorio v. NLRB, 680 F.2d 598, 601
(9th Cir. 1982) (citations omitted). In this case, Solorzano
apparently conducted no investigation at all. Other than dis-
cussing the issue with Rangel from time to time, the record
shows no activity undertaken to resolve the matter.
I find that Solorzano’s periodic conversations with Rangel
in which he falsely promised to attempt to resolve the matter
lulled Rangel at least initially into the mistaken belief the
Respondent could and would resolve the matter. These inten-
tional misstatements and the intentional failure to act on an
apparently meritorious grievance present a compelling prima
821SERVICE EMPLOYEES LOCAL 87 (CERVETTO MAINTENANCE)
5 Personal animosity is not the sine qua non of a breach of the
union’s duty of fair representation. A union may not refuse to rep-
resent an employee for any improper reasons, of which personal ani-
mosity is just one, the precise reason is unimportant. Bennett v.
Glass & Pottery Workers Local 66, 958 F.2d 1429, 1438 (7th Cir.
1992).
6 Respondent presented no evidence to show a past practice under
the collective-bargaining agreement of employers never waiving the
time limits for filing grievances.
7 According to Professor Morris, it has been suggested that the
union’s failure to act on behalf of the employee will not constitute
a breach of the duty of fair representation unless the union is the
exclusive means for the employee to obtain the remedy sought. II
Morris, Developing Labor Law, p. 1329, fn. 211 citing Archer v. Air
Line Pilots Assn., 609 F.2d 934 (9th Cir. 1979), cert. denied 446
U.S. 953 (1980). Respondent suggested at hearing that Rangel’s rem-
edy initially and now was with the State Labor Commission. This
contention was never litigated as a bona-fide defense. Accordingly,
it is not necessary to decide whether Respondent is the exclusive
means for Rangel to obtain the remedy sought.
8 Curiously, General Counsel contends in his brief, pp. 12–13 that
he is seeking a provisional make-whole remedy. However, in Rubber
Workers Local 250 (Mack-Wayne Closures), 290 NLRB 817 (1988),
the Board indicated that a Respondent had the option of litigating
the merits of a particular grievance in the underlying hearing or at
compliance. This is the choice General Counsel put to Respondent
at hearing. Respondent’s attorney replied, ‘‘We’d reserve that for
compliance (Tr. 64). In accord with Mack-Wayne Closures and the
position taken by General Counsel at hearing, I make no ruling at
this time on any make-whole remedy, provisional or otherwise.
facie case that Respondent violated the Act as alleged and
I so find. In this respect, I find beyond challenge, that at all
times material to this case, Solorzano, was dealing with Ran-
gel within the scope of his employment. Accordingly, Re-
spondent is responsible for the acts of its agent, Solorzano.
Meat Cutters Local 248, 222 NLRB 1023 (1976).
2. Respondent’s defense
No evidence was presented to show that Solorzano har-
bored any animus against Rangel. Indeed because Solorzano
apparently treated all or most of Respondent’s members with
whom he dealt with equal ineptitude, he was eventually ter-
minated by Respondent. However, the fact that Rangel was
not singled out is hardly a defense. It merely means that oth-
ers might be victims too.5 More to the point is Respondent’s
claim that by the time that Rangel first brought her pay dis-
pute to Solorzano’s attention, it was too late for even the
most skillful business representative to file or process a
grievance under terms of the collective-bargaining agreement
cited above.
In another context, the Board has approved the principle
that ‘‘the law does not require futile ritual. Sheet Metal
Workers Local 18 (Rohde Bros.), 298 NLRB 50 (1990). Nev-
ertheless, I find that Respondent has failed to prove it should
be exonerated due to the alleged untimely complaint made
by Rangel. To support this conclusion, I note the following:
(1) It is not clear to me that Rangel had adequate notice
under the contract to start the 15-day time limit running prior
to her first contact of Solorzano in May or June. At no time
did Cervetto refuse her claim. Houck led her to believe the
matter would be resolved to her satisfaction.
(2) The defense now proffered was never stated at the time
that Rangel first contacted Respondent. Rather it is an after-
the-fact justification upon which Respondent should not now
be permitted to rely. Cf. Philips Industries, 295 NLRB 717,
718 (1989). Compare Communications Workers Local 6320
(AD/VENT), 294 NLRB 810 (1989).
(3) Even if Rangel’s complaint was untimely under section
20.1 of the collective-bargaining agreement, there is no evi-
dence to show that Solorzano would have processed Rangel’s
grievance any differently than he did when she complained
in May or June.
(4) Even if Rangel’s complaint was untimely, Respondent
was not completely foreclosed from taking action. The Board
has held that the duty of fair representation does not require
a union to resort to extraordinary measures to process griev-
ances. Rather a union’s obligation is merely to refrain from
conduct that is arbitrary, discriminatory or in bad faith. Com-
munications Workers Local 6320, supra at 811. Thus, if
Solorzano had undertaken ordinary measures like appealing
to Cervetto’s sense of fairness, like requesting Cervetto to
waive the contractual time limits or like arguing the equities
based on the other two cleaning women having receiving
their pay, Solorzano could not have guaranteed Rangel suc-
cess.6 But he would have guaranteed her a chance, a hope,
perhaps even a prayer of obtaining her money due and
owing. This Solorzano did not do. This was more—much
more than mere negligence.
For the reasons stated above, I find that Respondent vio-
lated Section 8(b)(1)(A) of the Act.7
CONCLUSIONS OF LAW
1. Cervetto Building Maintenance Co. is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Service Employees’ International Union,
Building Service Employees Union Local 87 is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. Respondent has violated Section 8(b)(1)(A) of the Act
when its agent Solorzano failed and refused to process the
grievance of its member Angela Rangel with respect to the
Employer failing to pay her certain overtime and vacation
pay due and owing.
4. The unfair labor practices found to have been commit-
ted by Respondent are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has violated Section
8(b)(1)(A) of the Act, it is recommended that it be ordered
to cease and desist therefrom and to post appropriate notice.
A make-whole remedy is deferred in accord with Respond-
ent’s wishes (Tr. 64) until compliance.8
[Recommended Order omitted from publication.]