Service Employees Local 254 (Brandeis University)

National Labor Relations Board - Board Decisions

Oct 31, 2000

332 N.L.R.B. 1118 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1118
Local 254, Service Employees International Union,
AFL–CIO (Brandeis University) and Jorge Luis
Santana. Case 1–CB–8835
October 31, 2000
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On August 29, 1997, Administrative Law Judge Mar-
tin J. Linsky issued the attached decision. The Respon-
dent Union filed exceptions and a supporting brief, and
the General Counsel filed cross-exceptions and a sup-
porting brief.
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, cross-exceptions, and briefs
and has decided to affirm the judge’s rulings, findings,
and conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent Union violated
Section 8(b)(1)(A) of the Act when it removed Jorge
Luis Santana from his union representative position on
the contractually created labor-management committee.
He dismissed a similar 8(b)(1)(A) allegation involving
the Respondent Union’s removal of Santana from his
shop steward position. For the reasons discussed below,
consistent with the principles set out in our recent deci-
sion in Office Employees Local 251 (Sandia National
Laboratories), 331 NLRB No. 193 (2000), we find that
the Respondent did not violate Section 8(b)(1)(A) in ei-
ther situation.
A. Facts
Jorge Luis Santana is a custodian employed by
Brandeis University (Employer) in Waltham, Massachu-
setts, and is represented by Local 254, Service Employ-
ees International Union, AFL–CIO (Union). On August
8, 1994, he became shop steward when 1 of 2 custodian
stewards resigned and Santana alone expressed a desire
to fill the position by submitting a nominating petition,
signed by fellow custodians, for the shop steward posi-
tion. In the absence of opposition to his candidacy,
Cathy Conway, the Union’s business agent, selected
Santana to be shop steward without conducting an elec-
tion among the custodians.
While its constitution and bylaws are silent on the pro-
cedures for selecting shop stewards, the Union has his-
torically filled the shop steward position by either elec-
tion or appointment. When several employees are inter-
ested in the position, the business agent will hold an elec-
tion among the custodians and designate the election
winner as the shop steward. When an employee’s candi-
dacy is unopposed, like Santana’s was in 1994, the busi-
ness agent will simply appoint that individual to the posi-
tion and forgo the formality of an election. The shop
steward position has no fixed term of office.
In 1995, while serving as shop steward for the custodi-
ans, Santana submitted a nominating petition, signed by
fellow custodians, for a vacant union representative posi-
tion on the contractually created labor-management
committee (Committee). Since no other employee ex-
pressed a similar interest, Business Agent Conway des-
ignated Santana to serve on the committee.
Article XXX of the applicable collective-bargaining
agreement between the Employer and the Union details
the purpose and functions of the committee as follows:

The Committee shall meet a minimum of once
every month for the purpose of discussing and at-
tempting in good faith, through mutual cooperation
and creativity, to solve problems that interfere with
the ability of the bargaining unit to remain a viable,
competitive source of custodial, grounds and trade
services for the University. . . .The Committee shall
attempt to explore new ways of working together ef-
fectively, including but not limited to techniques of
performing and evaluating work, new methods of
maximizing quality and efficiency, and new ways of
joint problem-solving. The University may, at its
discretion, provide training and/or other support for
the Committee to enhance its work. The Committee
shall attempt to use techniques such as brainstorm-
ing, quality initiatives, experimentation and incen-
tives to generate new and better ways of serving the
University.
The parties agree that the Committee shall not be
a substitute for collective bargaining, but it will
serve as a new approach to the parties’ relationship,
designed to make it more productive. Nothing in
this agreement shall limit the University from using
other quality-enhancing training and development
techniques.

The committee consists of five representatives of the Em-
ployer and five representatives of the Union. Pursuant to
article XXX, the “[u]nion representatives” on the committee
are “elected for three year periods by secret ballot” and bar-
gaining unit members on the committee are entitled to
“compensatory time at time and one half when such Com-
mittee work, as directed by the University, occurs outside
their regularly scheduled hours.”
On January 17, 1996, Santana filed a grievance over
the Employer’s failure to pay those custodians who had
not reported for work on several snow days. The Em-
332 NLRB No. 103
SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1119
ployer settled the grievance to the apparent satisfaction
of the union leadership, with the exception of Santana.
Without consulting either Business Agent Conway or
Jack O’Malley, the chief steward, Santana unsuccessfully
sought to reopen certain issues with the Employer that
had been resolved by the grievance settlement endorsed
by the Union. Shortly thereafter, on May 6, 1996,
Santana presented to Conway two signed petitions—one
seeking the selection of unit employee Ricardo Vasquez
as the shop steward for the custodians and the other
nominating Santana for the position of chief steward,
then occupied by O’Malley, and requesting that an early
election for that position be held. However, there was no
opening in the chief steward position at the time. As
found by the judge, the chief steward position had tradi-
tionally been an appointed position, and the Union did
not intend to remove Jack O’Malley, the incumbent chief
steward, who was considered to be doing a good job by
the Union.
By letter dated May 8, 1996, Conway removed
Santana from his positions as shop steward for the custo-
dians and union representative to the committee. Con-
way cited “inappropriate handling of grievances” as the
reason for the steward removal. She cited Santana’s
“failure to work cooperatively with the other Custodian
[Committee] representative” and his “failure to disclose
information about [Committee] business with [Commit-
tee] team and Business Agent” as the reasons for the rep-
resentative removal. Santana vigorously protested his
removal from the shop steward and committee represen-
tative positions, and he later filed a timely unfair labor
practice charge against the Union. Thereafter, the Re-
gional Director issued a complaint alleging that
Santana’s removal from both union positions separately
violated Section 8(b)(1)(A) of the Act.
B. The Judge’s Decision
The starting point of the judge’s analysis was that, un-
der Section 7 of the Act, union members have a right to
question their union’s representation of them and to seek
to redirect their union’s policies or strategies for dealing
with their employer. The judge found that Santana was
dissatisfied with his Union’s handling of the snow day
grievances, and was engaged in protected activity both
when he complained about the Union’s resolution of
those grievances and, shortly thereafter, when he pre-
sented his superiors with two petitions, signed by over 30
employees, seeking Santana’s election to the position of
chief steward and the selection of another employee to
replace Santana as shop steward. The judge found that
Santana’s running for the position of chief steward was
“a major factor” in the Union’s removing him from the
two union positions held. On the other hand, the judge
also found that Santana’s efforts to reopen issues that the
Union had resolved in the snow day grievances were
undertaken without consulting his superiors, and had the
effect of severely undercutting the authority of Union
Business Agent Conway in her dealings with the Em-
ployer over grievances.
In determining the propriety of the Union’s conduct
towards Santana, the judge drew a distinction based on
whether Santana was an appointed or an elected union
official. Based on his review of the Union’s constitution,
bylaws, and past practice and the selection process used
in October 1995, the judge found that Santana had been
appointed to the shop steward position. He found, how-
ever, that Santana’s position on the committee was an
elected position given the terms of article XXX of the
contract between the Employer and the Union.
Based on a comparison between Finnegan v. Leu, 456
U.S. 431 (1982), and Sheet Metal Workers v. Lynn, 488
U.S. 347 (1989), the judge believed that a union has wide
discretion to remove appointed, as opposed to elected,
union officials. Relying on the principles of Shenango,
Inc., 237 NLRB 1355 (1978), the judge therefore found
that the union properly exercised its discretion in remov-
ing Santana from the appointed shop steward position
because the “union leadership, did not feel, rightly or
wrongly, that Santana was a team player, loyal and coop-
erative.” In contrast, the judge found that the Union
could not remove Santana from his job as elected com-
mittee representative “because of his protected activity
taking positions contrary to the union leadership on the
disposition of grievances and his candidacy for the chief
steward’s position.”
C. Positions of the Parties
The Union excepts to the judge’s findings pertaining to
the removal of Santana from the committee representa-
tive position. In its exceptions, the Union argues that it
does not matter whether Santana was appointed or
elected to the committee representative position. The
Union further contends that its removal of Santana was
lawful under the provision of Section 8(b)(1)(A) that
allows a labor organization the right “to prescribe its own
rules with respect to the acquisition or retention of mem-
bership.” In this connection, the Union contends that
Santana had no protected right to undercut the grievance
authority of its business agent and no protected right to
create his own rules for conducting an election for the
then-occupied chief steward position. The Union also
asserts that it acted lawfully, pursuant to the dictates of
Shenango, in removing Santana from the committee rep-
resentative position, because “his actions cut to the quick
of two of the most fundamental internal rights a union
has: (1) orderly administration of the process of repre-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1120
senting members; [and] (2) the conduct and control of its
various elective and appointive processes.” The Union
finally argues that the judge’s reliance on the Supreme
Court’s decisions in Finnegan v. Leu and Sheet Metal
Workers v. Lynn is misplaced because those cases arose
under a different statute, Title I of the Labor-
Management Reporting and Disclosure Act (LMRDA),
29 U.S.C. § 411 et seq.
The General Counsel excepts to the judge’s dismissal
of the 8(b)(1)(A) allegation pertaining to the shop stew-
ard position. In his cross-exceptions, the General Coun-
sel urges that the judge’s distinction between elected and
appointed officials, distilled from Finnegan v. Leu, su-
pra, and Sheet Metal Workers v. Lynn, supra, is valid but
that he erred in finding the steward position to be an ap-
pointed position, notwithstanding that the business agent
selected Santana to be steward in the absence of a con-
tested election. The General Counsel argues that the
business agent has no discretion in choosing stewards
under the Union’s system because if only one individual
is interested and nominated for the position, that individ-
ual automatically becomes the steward. The General
Counsel also points out that the judge incorrectly relied
on the lack of a definite term of office to find the shop
steward position to be an appointed one.
D. Discussion
This case presents the question whether the scope of
Section 8(b)(1)(A)1 extends to the union sanctions of
removing an employee from the positions of shop stew-
ard and union representative on the contractually created
Labor-Management Committee because of his dissident
activities. It is, therefore, within the universe of union
discipline cases the Board recently reexamined in Office
Employees Local 251 (Sandia National Laboratories),
supra. There, the Board reviewed Section 8(b)(1)(A) and
its proviso, its legislative history, and the seminal Board
and Supreme Court cases pertaining to union discipline
of union members. As a result of that exhaustive re-
view, the Board held that Section 8(b)(1)(A)’s proper
scope in union discipline cases is to proscribe union con-
duct against union members that falls within several dis-
crete areas. Thus, a union’s discipline of a member is
within the reach of Section 8(b)(1)(A) if it impacts on the
members’ relationship with their employer,2 impairs ac-
cess to the Board’s processes,3 pertains to unacceptable
methods of union coercion such as violence,4 or other-
wise impairs policies embedded in the Act.5 If union
discipline of members falls within any one of these areas,
it falls within the scope of Section 8(b)(1)(A) and its law-
fulness will be determined by application of Board
precedent. If the discipline does not fall within any of
these areas, it falls outside the regulation of the NLRA
and there will be no violation of Section 8(b)(1)(A).

1 Sec. 8(b)(1)(A) states in relevant part:
(b) it shall be an unfair labor practice for a labor organization or its
agents—to restrain or coerce (A) employees in the exercise of the
rights guaranteed in section 7: Provided, That this paragraph shall not
impair the right of a labor organization to prescribe its own rules with
respect to the acquisition or retention of membership therein.
Sec. 7 provides:
Employees shall have the right to self-organization, to form, join, or
assist labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, and shall also have the right to refrain from any or all of such
activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment as authorized in 8(a)(3) of this title.
Consistent with Sandia’s holding, we overruled Car-
penters Local 22 (Graziano Construction), 195 NLRB 1
(1972), and its progeny, which had expanded the reach of
Section 8(b)(1)(A) by making the Board a forum for vin-
dicating policies that Congress intended to be enforced
through the procedures of the Landrum Griffin Act.
Sandia, supra, slip op. at 8.
In view of our decision in Sandia, we do not agree
with the judge or our dissenting colleague that the ques-
tion whether the Union violated Section 8(b)(1)(A) by
removing Santana from positions as a union representa-
tive turns on the Supreme Court’s decisions in Finnegan
v. Leu, supra, and Sheet Metal Workers v. Lynn, supra.
Those cases were decided under Title I of the LMRDA,
29 U.S.C. § 411(a)(1) and (2) (1976). As we noted in
2 Teamsters Local 823 (Roadway Express, Inc.), 108 NLRB 874
(1954).
3 Operating Engineers Local 138 (Charles S. Skura), 148 NLRB 679
(1964).
4 Typographical Union (American Newspaper Publishers Assn.), 86
NLRB 951 (1949).
5 Mine Workers Local 12419 (National Grinding Wheel Co.), 176
NLRB 628 (1969). The dissent in Sandia argued that the intraunion
discipline there impaired a policy of the Act because it interfered with
the Sec. 7 right to concertedly oppose the policies of union officials.
The Board rejected this argument and held, instead:
[T]he right to concertedly oppose the policies of union officials is pro-
tected by Section 7 if that activity is “for the purpose of collective bar-
gaining or other mutual aid or protection . . . .” That protection is
broad but not unlimited and it assumes that the activity bears some re-
lation to the employees’ interests as employees. Eastex, Inc. v. NLRB,
437 U.S. 556, 567–568 (1978); Firestone Steel Products Co., 244
NLRB 826, 827 (1979); Trover Clinic, 280 NLRB 6 (1986); and
Southern California Gas Co., 321 NLRB 551, 555–557 (1996).
Furthermore, . . . . the central theme of both the Supreme Court’s
8(b)(1)(A) decisions and of Board’s 8(b)(1)(A) cases prior to
Graziano is that that section was not enacted to regulate the relation-
ship between unions and their members unless there was some nexus
with the employer-employee relationship and a violation of the rights
and obligations of employees under the Act. [Sandia, supra, slip op.
at 8 (italics in original).]

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1121
Sandia, supra, slip. op. at 7, 10, Congress gave to the
federal district courts, not to the Board, authority to hear
and decide suits brought to enforce rights under Title I of
the LMRDA. See Boilermakers v. Hardeman, 401 U.S.
233, 239 (1971) (in enacting Title I, Congress explicitly
referred claims “not to the NLRB but to the federal dis-
trict courts”).6 Under Sandia, whether the union violated
the Act must be determined by reference to the impact on
the members’ relationship with their employer, the im-
pairing of access to the Board’s processes, the use of
unacceptable methods of union coercion such as vio-
lence, or the impairing of policies imbedded in the Act.7
1. The Union’s actions toward Santana do not impair
access to the Board’s processes, involve such unaccept-
able forms of coercion as violence, or clash with a
statutory policy imbedded in the Act
Applying these principles to the case at bar, we find
first that the removal of Santana from the positions of
shop steward and union representative on the Labor-
Management Committee (committee) does not impede
access to Board processes. Nor does it involve threats or
acts of violence to force a dissident employee to take
certain actions desired by the union. There is no conten-
tion or evidence to the contrary.
The removals also do not clash with a statutory policy
imbedded in the Act. Although the position of union
representative to the committee is created by contract, we
find that removal from that position does not offend the
basic statutory policy, favoring adherence to the terms of
a collective-bargaining agreement.8 Article XXX does
not prohibit the Union from removing its committee rep-
resentatives for cause during the 3-year term. Accord-
ingly, by removing Santana as its committee representa-
tive, the Union was not trying to change the structure of
the committee or otherwise nullify its agreement with
respect to article XXX of the contract.9 Furthermore, in
removing Santana, the Union never intimated that it was
not going to follow the contract’s procedure to select
Santana’s replacement by holding an election. We,
therefore, find that the removals did not fall within three
of the areas Sandia identified as being within the scope
of Section 8(b)(1)(A).

6 As we noted in Sandia, supra, slip op. at 7 fn. 11, Congress also
specifically rejected proposals that would have allowed Title I suits to
be brought by the government. Rather, it determined that those suits
should be brought to court by the aggrieved individual members them-
selves. Id. at 7, 10.
7 As we explained in Sandia, supra, slip op. at 4–6, we reject the
claim, advanced by our dissenting colleague here, that we are free to
base violations of Sec. 8(b)(1)(A) on violations of other labor laws
because of the statement in Scofield v. NLRB, 394 U.S. 423, 430
(1969), that a union does not violate Sec. 8(b)(1)(A) if its discipline of
an employee member “impairs no policy that Congress had imbedded
in the labor laws.” Reading Scofield in its entirety, it is clear “that the
statutory policies to which it was referring are those set forth in the
Act.” Sandia, supra, slip op. at 6.
8 Cf. Mine Workers Local 12419 (National Grinding Wheel Co.), su-
pra (union offended such policy by imposing a penalty on members
who had refused to strike in violation of the no-strike clause in the
collective-bargaining agreement).
2. It is not necessary to determine whether, under Sandia,
the Union’s actions toward Santana impaired his rela-
tionship with the employer, because even assuming such
impairment, there is no violation under longstanding
Board precedent
Whether the removals fall within the fourth area iden-
tified in Sandia—the impact on the employees’ relation-
ship with their employer—is a more difficult question,
particularly with respect to the position on the commit-
tee. Unlike the steward position, which is solely a union-
created position, the collective-bargaining process cre-
ates the position on the committee. As such, it could be
considered a term and condition of employment.10 Ar-
guably, by removing Santana from this position, the Un-
ion adversely affected his conditions of employment.
Alternatively, removal from the committee arguably
affects Santana only as a union member and does not
affect his relationship with the employer. As noted ear-
lier, article XXX of the contract describes the position as
a representative of the “Union” as opposed to an “em-
ployee” representative. It could be argued that this de-
scription indicates that the individual elected to that posi-
tion is subject to the union’s direction and approval and
does not act as an employee in carrying out his commit-
tee duties and responsibilities.
Clearly, if we were to find that the removals did not af-
fect Santana’s relationship with the employer, we would
dismiss the 8(b)(1)(A) allegations under Sandia because
the union’s action would not have fallen within any of
the areas Sandia identifies as being within the scope of
Section 8(b)(1)(A). We need not decide this issue, how-
ever, because even assuming that the removals impacted
Santana’s employment relationship and were therefore
within the scope of Section 8(b)(1)(A), we would still
find no violation of Section 8(b)(1)(A) under Board
precedent, which has not been affected by Sandia.
9 Cf. Shell Oil Co., 93 NLRB 161, 164 (1951) (no unlawful em-
ployer refusal to bargain when union sought to nullify its agreement
with employer when it insisted that the latter negotiate grievances with
persons other than those previously agreed-upon members of work-
men’s committees).
10 See, e.g., Litton Financial Printing Division v. NLRB, 501 U.S.
190, 206 (1991) (agreed-upon terms of collecting-bargaining agreement
become terms and conditions of employment).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1122
3. The application of the Board’s balancing test results in
the finding that the removals do not violate Section
8(b)(1)(A)
If we assume that there is a clear nexus to the em-
ployee-employer relationship under Sandia, then the Un-
ion’s removals come within the scope of Section
8(b)(1)(A). We must then determine whether the remov-
als violated Section 8(b)(1)(A), by balancing the em-
ployees’ Section 7 rights against the legitimacy of the
union interest at stake in the particular case in accord
with longstanding precedent.11 To apply this test, we
begin by analyzing the Section 7 rights that are affected
by the Union’s removing Santana from his positions both
as shop steward and union representative on the contrac-
tually created Labor-Management Committee. In serv-
ing in these two positions, Santana was exercising his
own Section 7 right to “assist labor organizations.”12
Additionally, to the extent he was elected to these posi-
tions by his fellow employees, Santana’s service as a
union representative implicated the Section 7 right of his
fellow employees “to bargain collectively through repre-
sentatives of their own choosing.” Finally, as the judge
found, in complaining about the Union’s handling of the
snow day grievance and in submitting a petition, signed
by over 30 employees, seeking to have himself elected to
the position of chief steward, Santana was exercising his
Section 7 right to question the adequacy of his Union’s
representation of the bargaining unit and to seek to redi-
rect his Union’s policies and strategies for dealing with
the Employer.13

11 See Shenango, Inc., 237 NLRB 1355 (1978). We note that She-
nango relied in part on Carpenters Local 22 (Graziano Construction),
supra, a case that, as discussed above, we overruled in Sandia, supra,
slip op. at 3, 4–5, 8. Our overruling of Graziano, however, was predi-
cated on its use of Sec. 8(b)(1)(A) to enforce policies of the LMRDA.
Id. We did not overrule Graziano insofar as it applies the general prin-
ciple that a proper application of Sec. 8(b)(1)(A) requires balancing the
employees’ Sec. 7 right to engage in or refrain from concerted activity
against the legitimacy of the union interest at stake. Sandia expressly
reaffirmed several Board decisions in which the 8(b)(1)(A) issue turned
on a weighing of the union interest in disciplining an employee and the
policies and prohibitions incorporated in the Act. Sandia, slip op. at 8,
citing Mine Workers Local 12419 (National Grinding Wheel Co.),
supra; Molders Local 125 (Blackhawk Tanning Co., Inc.), 178 NLRB
208 (1969); and Plumbers Local 444 (Hanson Plumbing), 277 NLRB
1231 (1985).
12 See Metropolitan Edison Co. v. NLRB, 460 U.S. 693, 703 (1983)
(“Holding union office clearly falls within activities protected by
§7. . . .”). We note that in some cases, but apparently not this one,
service in a shop steward position may carry with it valuable employ-
ment benefits, such as superseniority for purposes of layoff and recall.
See Dairylea Cooperative, Inc., 219 NLRB 656 (1975), enfd. 531 F.2d
1162 (2d Cir. 1976); Gulton Electro-Voice, Inc., 266 NLRB 406, 409
(1983), enfd. 727 F.2d 1184 (D.C. Cir. 1984).
13 See Sandia, supra, slip op. at 3, 8–9, discussing the longstanding
principle that Sec. 7 encompasses the right of employees to persuade
their union representative to change its bargaining policies and to pur-
sue changes in their working conditions.
To the extent that Santana’s exercise of his Section 7
right to petition to become chief steward and to bring
about a change in the Union’s grievance handling ended
up costing him his union positions as shop steward and
committee representative, it is arguable that his Section 7
rights, and those of the employees who supported him,
were restrained within the meaning of Section
8(b)(1)(A).14 But that is only the beginning of our analy-
sis. We must balance the employees’ legitimate right to
engage in Section 7 activity against the legitimacy of the
union interest at stake in the particular case.
In the present case, we find that, to the extent that the
removal of Santana from his union positions may be
deemed a restraint on Section 7 rights, that restraint is
more than counterbalanced by the Union’s legitimate
interest in speaking with one voice, through trusted rep-
resentatives, in dealing with the Employer about the bar-
gaining unit employee’s terms and conditions of em-
ployment. That point is most self-evident with respect to
the Union’s removal of Santana from his position as shop
steward. A shop steward with grievance processing re-
sponsibilities “is the union vis-à-vis the employees as
well as the employer” and as such “epitomizes the con-
certed activity of employees in organizing a union and
regularizing their labor relations with their employer
through a collective-bargaining agreement . . . .” General
Motors Corp., 218 NLRB 472, 477 (1975) (italics in
original). In the performance of that important represen-
tational function, a union is entitled to have as its agents
only those persons whom it trusts to act with an undi-
vided loyalty. Metropolitan Edison Co. v. NLRB, 460
U.S. 693, 704–705 fn. 9 (1983).
For the foregoing reasons, the Board has previously
held that a union does not violate Section 8(b)(1)(A) if it
removes from positions with representational responsi-
bility dissident employees who are hostile to and in dis-
agreement with the policies of the current union leader-
ship.15 To call such removals “reprisals” for the dissi-
dents’ Section 7 activities misses the point. As the Board
explained in Shenango, Inc., supra, 237 NLRB at 1355, a
“union is legitimately entitled to hostility or displeasure
toward dissidence in such positions where teamwork,
loyalty, and cooperation are necessary to enable the un-
ion to administer the contract and carry out

14 Helton v. NLRB, 656 F.2d 883, 887–889 (D.C. Cir. 1981), relied
on by our dissenting colleague.
15 See Longshoremen ILA Local 1294 (International Terminal), 298
NLRB 479 (1990), and cases cited therein.

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1123
its side of the relationship with the employer.” Accord-
ingly, we find that the Union’s removal of Santana from
the shop steward position did not violate Section
8(b)(1)(A).
Our dissenting colleague agrees that the Union did not
violate Section 8(b)(1)(A) by removing Santana from his
position as shop steward. However, like the judge, he
would find a violation with respect to the Union’s re-
moval of Santana from his elected position as union rep-
resentative on the contractually created labor manage-
ment committee. Our colleague reasons that, while the
Union was entitled to remove Santana from the ap-
pointed position of shop steward on loyalty grounds, the
Union does not have a legitimate interest in counter-
manding the democratic choice of employees to place
Santana on the Labor-Management Committee. We dis-
agree. We accept the judge’s factual finding that the
shop steward position was appointed, not elected as the
General Counsel contends.16 But even if it were other-
wise and both positions were elected ones, it is our
judgment that Santana’s being elected to his union posi-
tions does not outweigh the Union’s legitimate interest in
ensuring the undivided loyalty of those who represent it
in dealing with the employer about working conditions.
In disagreeing with our colleague and the judge on this
point, we are guided by the principle that the Section 7
rights at issue are qualified and limited by the principle
of exclusive representation expressed in Section 9(a) of
the Act. See Emporium Capwell Co. v. Western Addition
Community Organization, 420 U.S. 50, 62–64, 70
(1975); Medo Photo Supply Corp. v. NLRB, 321 U.S.
687, 683–685 (1944). As Emporium recognized, a un-
ion, as the exclusive representative of the employees in
dealing with the employer, has a legitimate interest in
speaking with one voice “and in not seeing its strength
dissipated and its stature denigrated by subgroups within
the unit separately pursuing what they see as separate
interests.” 420 U.S. at 70. A corollary of that right is the
union’s right, discussed above, to have as its representa-
tives in dealing with the employer only those persons of
whose undivided loyalty it is assured.
Nothing about the Labor Management Committee or
the contractual provision calling for the election of the
union representatives to the committee for a 3-year term
convinces us that the committee was intended by the
parties to operate outside the traditional rules in which
the Union is the exclusive representative of the employ-
ees and, as such, entitled to insist on the undivided loy-
alty of its bargaining representatives. The mission of the
committee contemplates regular meetings “to explore
new ways of working together effectively, including but
not limited to techniques of performing and evaluating
work, new methods of maximizing quality and effi-
ciency, and new ways of joint problem-solving.” These
topics include mandatory subjects of bargaining. Fur-
thermore, by the express terms of the contract, the em-
ployees elected to serve on the committee for 3 years are
“Union representatives.” The contract does not address
or specify how the Union’s representative may be re-
moved from the committee during the elected 3-year
term or under what conditions. Without more, we find it
reasonable to conclude that the Union retains the same
right to remove Santana from his position as union repre-
sentative on the committee as our colleague concedes it
has with respect to the steward position. As previously
stated, with respect to both positions, the Union, as the
exclusive bargaining representative, is entitled to speak
with one voice through representatives with whom it has
complete trust.

16 As noted by the judge, there is no term of office for this position,
thereby no regular mechanism by which unit members can democrati-
cally “elect” a new candidate. The fact that the Union periodically
solicited employee input to inform its decision on which individual to
appoint does not alter the traditional, appointed nature of the position.
In reaching the result we do, we recognize that a union
may, if it chooses, contractually waive its right to act as
exclusive bargaining agent of unit employees. See
Toledo Typographical Union 63 v. NLRB, 907 F.2d
1220, 1222–1223 (D.C. Cir. 1990). It follows that a un-
ion could, if it so desired, consent to having representa-
tives whom it could not remove on the basis of concerns
about their loyalty to the union officials ultimately re-
sponsible for representing the bargaining unit. However,
we find no such waiver here, much less the requisite
“clear and unmistakable” waiver. See Metropolitan Edi-
son Co. v. NLRB, supra, 460 U.S. at 708. The contract
language simply gives no indication that, in agreeing to
the election of union representatives on the committee
for a fixed term, the Union was licensing a subgroup of
employees to deal with the employer independent of the
Union’s ultimate supervision and control.
4. The Board’s decision in Hilde is distinguishable
The General Counsel and our dissenting colleague rely
on Operating Engineers Local 400 (Hilde Construction
Co.), 225 NLRB 596, 600–602 (1976), enfd. mem. 561
F.2d 1021 (D.C. Cir. 1977). In Hilde, the Board found
that the union violated Section 8(b)(1)(A) by imposing
internal union fines on members who engaged in dissi-
dent activity in an attempt to redirect their union’s bar-
gaining strategy. There, as here, the aggrieved employee
members were engaged in Section 7 activity aimed at
altering their union’s relationship with their employer
and improving their terms and conditions of employ-
ment. The Board found that their employment relation-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1124
ship was affected because their activity was directed to-
ward the process by which their terms and conditions of
employment would be settled. The Board held that the
union’s fining of the dissident employees restrained the
employees’ Section 7 rights, contrary to the policy of the
Act, without being counterbalanced by a legitimate and
substantial union interest.17
Assuming, as we do, that the union’s removals im-
paired Santana’s relationship with the employer (see dis-
cussion supra), we find Hilde distinguishable because
there, unlike here, the employee members were not act-
ing as the union’s representative in dealing with the em-
ployer. Santana, of course, was serving as such a union
representative. In contrast to Hilde, any arguable re-
straint on the employees’ Section 7 rights was justified
by the Union’s legitimate interest in the undivided loy-
alty of its own bargaining representatives. Furthermore,
unlike Hilde, where the dissident employees were fined,
the measures that the Union took—relieving Santana of
his representational responsibilities—were narrowly tai-
lored to serve that legitimate union interest, while leav-
ing Santana free to work within the Union in pursuit of
his goal of trying to bring about a change in the Union’s
bargaining strategy.18
5. Questions concerning the continued validity of Hilde
Although, for the foregoing reasons, we find Hilde dis-
tinguishable, we note that we also distinguished Hilde in
Sandia, supra, slip op. at 9. We would be remiss if we
failed to acknowledge that part of the impetus for treat-
ing Hilde as a distinguishable exception is that Hilde
rests on certain assumptions about the intended scope of
Section 8(b)(1)(A) that are in considerable tension with
our analysis in Sandia. Specifically the overall legal
analysis in Sandia, slip. op. at 3–8, casts doubt on
Hilde’s assumption that Congress intended Section
8(b)(1)(A) to be the vehicle for resolving internal union
disputes involving the formulation of a union’s negotiat-
ing strategy unless, as the Board held in one of the foun-
dational Sec. 8(b)(1)(A) cases, those disputes involve
either union violence or a union’s causing or attempting
to cause the employer to alter the dissident employee’s
job status. See Teamsters Local 823 (Roadway Express,
Inc.), 108 NLRB 874 (1954), discussed in Sandia, supra,
slip op. at 3, 9.

17 Our dissenting colleague notes that the judge’s decision in Hilde,
225 NLRB at 601–602, also relied on policies expressed in the
LMRDA. However, as we pointed out in Sandia, supra, slip op. at 9,
that discussion in Hilde was unnecessary to the decision, which rested
squarely on the Sec. 7 right of employees to question their union’s
representation of them and to seek to redirect their union’s policies or
strategies for dealing with their employer.
18 If the Union had fined or expelled Santana in response to his Sec.
7 activities, we would be presented with different issues than those we
decide today.
The underlying assumption in Hilde is that because a
union is the employees’ exclusive bargaining representa-
tive in dealing with their employer, disputes over the
union’s negotiating and grievance policy are not merely
internal union affairs. Instead, Hilde assumed that fining
union members for questioning the union’s negotiating
strategy has an impact on the employees’ terms and con-
ditions of employment that is sufficiently analogous to
that in Roadway Express, supra—where the dissident
employees actually lost their jobs with their employer—
to warrant similar treatment. We doubt whether that
analogy is sound. Cf. NLRB v. Wooster Div. of Borg-
Warner Corp., 365 U.S. 342, 349–350 (1958) (whether
unit employees have an opportunity to vote to accept
employer’s last contract offer before union calls a strike
“settles no term and condition of employment” but “deals
only with relations between the employees and their un-
ions”).
Furthermore, even assuming the correctness of Hilde’s
employment nexus assumptions, extending Roadway
Express to regulate purely internal union sanctions, as
the Board did in Hilde, raises the specter of the Board’s
becoming the regulator of a wide variety of internal un-
ion political controversies that Congress anticipated
would be resolved within the framework of the LMRDA.
See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175,
187–197 (1967); United Steelworkers of America v. Sad-
lowski, 457 U.S. 102, 109–113 (1982). That is so be-
cause unions exist in large part to deal with employers
about working conditions, and thus a large number of
internal union disputes could fairly be characterized as
disputes about how best to deal with employers. If the
open textured language of Section 7, together with the
term “restraint,” as broadly read by some courts,19 were
intended by Congress to play the role they did in Hilde,
the improbable consequence would be, as the Supreme
Court observed in a related context, that “Congress pre-
ceded the Landrum-Griffin amendments with an even
more pervasive regulation of the internal affairs of un-
ions.” Allis-Chalmers, supra, 388 U.S. at 183. It is set-
tled that Congress did not intend that Section 8(b)(1)(A)
should have the scope that a purely literal reading of its
terms might suggest. See Pattern Makers League v.
NLRB, 473 U.S. 95, 101–102 (1985); NLRB v. Drivers
Local 639 (Curtis Bros.), 362 U.S. 274, 280–292 (1960).
In sum, while it is unnecessary to our decision to fi-
nally decide whether Hilde was correctly decided, there
is a number of reasons for questioning its continued va-
19 See Helton v. NLRB, supra, 656 F.2d at 887–889.

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1125
lidity. It is clear that Hilde broadly protects against in-
ternal union sanctions that restrain union members’ Sec-
tion 7 rights to participate in formulating their union’s
strategy for dealing with the employer. It is less clear
that Hilde adequately considers that, in enacting Section
8(b)(1)(A), Congress specified that that section’s protec-
tion against restraints on Section 7 rights “shall not im-
pair the right of a labor organization to prescribe its own
rules with respect to the acquisition or retention of mem-
bership therein.” See Pattern Makers League v. NLRB,
supra, at 109 fns. 21–22; Machinists v. Gonzales, 356
U.S. 617, 620 (1958).
E. Conclusion
Regardless of questions about the continuing validity
of Hilde, it is not controlling here. We have assumed
that the removals of Santana from both union positions
impaired Santana’s relationship with the employer. We
nevertheless find that the removals are not unlawful be-
cause the Union’s legitimate interest in ensuring the un-
divided loyalty of union representatives who deal with
the Employer about working conditions outweighs
Santana’s Section 7 rights and thus the removals do not
constitute an unlawful restraint on those rights. Accord-
ingly, we shall dismiss the complaint in its entirety.20
ORDER
The complaint is dismissed.

MEMBER HURTGEN, dissenting in part.
Contrary to my colleagues, I conclude that the Re-
spondent violated Section 8(b)(1)(A) by removing Jorge
Luis Santana from the elected position of representative
on the Labor-Management Committee (LMC).
At the outset, it is important to distinguish between the
alleged Section 7 activities of Santana and the alleged
8(b)(1)(A) response of the Union. The alleged Section 7
activities were Santana’s actions of protesting the resolu-
tion of a grievance, and his running for the position of
chief steward. The alleged 8(b)(1)(A) responses were the
Union’s removal of Santana from the appointed position
of shop steward, and the Union’s removal of him from
the elected position of LMC representative. As set forth
below, I conclude that Santana’s running for the position
of chief steward was protected by Section 7, and that the
Union’s removal of him as LMC representative was
unlawful under Section 8(b)(1)(A).

20 While it is not decisive, we are not persuaded that the result we
reach is inconsistent with Sheet Metal Workers v. Lynn, supra, relied on
by the judge and our dissenting colleague. We note that no issue of the
union’s right, as exclusive bargaining representative, to the undivided
loyalty of its agents for dealing with the employer was before the Court
in Lynn. Also, in contrast to this case, where the judge found that
Santana’s activities had severely undercut the Union’s authority in its
dealings with the Employer over grievances, Lynn explicitly relied on
the fact that there was no suggestion that the union officer there had
“contravened any obligation properly imposed upon him.” 488 U.S. at
355 fn. 6. The dispute in Lynn was purely an internal affair—the ex-
penditures and financing of the union—and Lynn’s removal from office
frustrated the electorate that had put him in office for the purpose of
reducing union expenditures. Id. at 349–350. Here, by contrast, the
dispute involves the Union’s representational role vis-à-vis the Em-
ployer, and the relevant elected officials are Santana’s union superiors
who, unless and until displaced by candidate Santana, have the right of
the exclusive bargaining representative to exercise ultimate supervision
and control over members dealing with the employer over working
conditions.
It is clear and uncontested by my colleagues that
Santana was engaged in Section 7 activity when he an-
nounced that he would run for the position of chief stew-
ard. It is equally clear that, as the judge found, this Sec-
tion 7 activity was a “major factor” in the Respondent’s
removal of Santana from the LMC.1
I assume arguendo that Santana’s continued advocacy
of the “snow day” grievance was another reason for the
Respondent’s action. I further assume arguendo that this
advocacy, which may have undercut the business agent’s
position, was unprotected.
Viewed in the foregoing light, I conclude that the Gen-
eral Counsel has shown that the Respondent’s action was
motivated, at least in substantial part, by protected activ-
ity. Further, the Respondent has not shown that it would
have taken the same action for the unprotected activity
standing alone.
I recognize that the Respondent’s actions here were in-
ternal, i.e., they did not affect the terms and conditions of
Santana’s employment. I also recognize that a union can
take some internal actions against an employee, even if
these actions are prompted by Section 7 activity.2 The
test for determining the legality of a union’s action is set
forth in Scofield.3 The Supreme Court there said that the
union’s action is privileged if it: (1) “reflects a legiti-
mate union interest,” (2) “impairs no policy Congress has
imbedded in the labor laws” (emphasis added), and (3)
“is reasonably enforced against union members who are
free to leave the union and escape the rule.” Id. at 430.
In the instant case, the Union’s action fails two of the
three tests. First, it impairs a policy that Congress has
imbedded in the labor laws. More specifically, Santana’s
quest for Union office was protected by the Labor-
Management Reporting and Disclosure Act (LMRDA),
and the Respondent punished him for making that quest.
In making this point, I recognize that recent Board law
holds that the “labor laws” mentioned in Scofield do not
1 Santana was removed only 2 days after the announcement that he
would be a candidate for chief steward.
2 See NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967) (union
was privileged to fine employee-member for crossing a picket line).
3 Scofield v. NLRB, 394 U.S. 423 (1969).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1126
embrace the LMRDA.4 I have set forth my contrary
view in Sandia, supra, slip op. at 11, i.e., that the
LMRDA is one of our nation’s labor laws. Under that
view, the Respondent’s actions fail this aspect of the
Scofield test.5
Contrary to the argument of the majority, I am not
suggesting that the NLRB is obligated to “enforce” Title
I of the LMRDA. Rather, I simply observe that, under
Supreme Court precedent, the NLRB is to consider all of
our nations labor laws in deciding cases under the
NLRA.6
But even accepting current Board law, the Respondent
fails to satisfy another of the Scofield tests. The Respon-
dent had no legitimate interest in removing Santana from
his elected position. In this regard, I distinguish between
appointed positions and elected positions. This precise
distinction is made in Finnegan v. Leu, 456 U.S. 431
(1982), and Sheet Metal Workers v. Lynn, 488 U.S. 347
(1989). If a union official appoints an employee to a
position of authority, the official can revoke that ap-
pointment if he/she believes that the employee can no
longer be trusted for loyalty.7 However, if the position is
an elected one, the employee-membership has vested the
employee with authority. The union (acting through one
official) does not have a legitimate interest in counter-
manding the democratic choice of the employees.8 As
the Supreme Court said in Sheet Metal Workers, supra,
488 U.S. at 645: “when an elected official . . . is re-
moved from his post, the union members are denied the
representative of their choice.”
My colleagues say that “the issue here involves re-
moval and not selection” of a union official. To be sure,
the allegedly unlawful act was the removal of the offi-
cial. However, as discussed above, there is a vital differ-
ence between selection by appointment and selection by
election. Thus, although the alleged unfair labor practice
was the removal from office, the manner of selection
(elected vs. appointed) is a relevant factor in determining
whether the allegation has merit.
My colleagues argue that Santana was undermining the
union’s role as the exclusive bargaining representative.
As discussed above, I assume arguendo that Santana’s
opposition to the Union regarding the grievance resolu-
tion was unprotected because it was contrary to the posi-
tion taken by the Union regarding the grievance.9 How-
ever, Santana’s desire to run for a union office stands on
a different footing. To say that this activity undercuts the
Union’s role is to undermine the whole concept of intra-
union democracy.

4 Office Employees Local 251 (Sandia National Laboratories), 331
NLRB No. 193 (2000).
5 See also Helton v. NLRB, 656 F.2d 883 (D.C. Cir. 1981). See also
Operating Engineers Local 400 (Hilde Construction Co.), 225 NLRB
596, 602 (1976). In Hilde (not overruled by my colleagues), the Board
relied, in part, on the violation of Sec. 101(a)(2) of the LMRDA.
6 See Scofield, supra. See also Southern Steamship v. NLRB, 316
U.S. 31, 46 (1942) (“[T]he Board has not been commissioned to effec-
tuate the policies of the Labor Relations Act so single-mindedly that it
may wholly ignore other and equally important Congressional objec-
tives”).
7 Finnegan, supra.
8 Sheet Metal Workers, supra.
Finally, I believe that my colleagues have confused
employee exercise of rights under Section 7 and the un-
ion’s response under Section 8(b)(1)(A). In Hilde, the
Section 7 activity was the holding of an employee meet-
ing relating to employment conditions. The union’s re-
sponse was a union fine, i.e., it was wholly internal. As
discussed above, an internal fine is unlawful if it fails to
meet Scofield criteria. On that basis, the Board found a
violation.
Similarly, in the instant case, the Section 7 activity was
Santana’s running for union office.10 The fact that this
activity was intraunion did not take it out of Section 7. It
was simply a different kind of Section 7 activity, as
compared to the one in Hilde. The Union’s response, as
in Hilde, was wholly internal. Applying Scofield princi-
ples, that response was unlawful under Section
8(b)(1)(A).
Based on the above, I conclude that the Respondent
violated Section 8(b)(1)(A) by removing Santana from
his elected position in retaliation for his Section 7 activ-
ity. I therefore dissent.11

Robert J. DeBonis, Esq., for the General Counsel.
Peter J. O’Neill, Esq., of Boston, Massachusetts, for Respon-
dent Union.
DECISION
STATEMENT OF THE CASE
MARTIN J. LINSKY, Administrative Law Judge. On June 24,
1996, Jorge Luis Santana, an individual, filed a charge against
Local 254, SEIU, Respondent Union.
On January 24, 1997, the National Labor Relations Board,
by the Regional Director for Region 1, issued a complaint al-
leging that Respondent Union violated Section 8(b)(1)(A) of
the National Labor Relations Act (the Act), when on May 8,
9 See Emporium Capwell v. Waco, 420 U.S. 50 (1975) (employees’
activity was unprotected where they sought to bypass the union-
employer grievance procedure and to bargain directly with the em-
ployer).
10 As indicated supra, Santana’s protest of the Union’s handling of
the “snow day” grievance may have been unprotected under Emporium.
11 In Sandia, I concluded that the controversy should be adjudicated
under the LMRDA. By contrast, in the instant case, there is a strong
nexus to NLRA concerns. The LMC position and the terms governing
it are set forth in the collective-bargaining agreement.

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1127
1996, it removed the Charging Party, Jorge Luis Santana, a
custodian at Brandeis University, from his position as a steward
and from his position as a representative to the Labor-
Management Committee.
Respondent Union filed an answer in which it denied that it
violated the Act in any way.
A hearing was held before me in Boston, Massachusetts, on
May 27, 1997.
On the entire record in this case, to include posthearing
briefs submitted by the General Counsel and Respondent, and
on my observation of the demeanor of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION
At all material times, Brandeis University, the Employer, a
corporation, with an office and place of business in Waltham,
Massachusetts, has been engaged in the operation of a nonprofit
private educational institution.
Respondent Union admits, and I find, that at all material
times, the employer has been an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union admits, and I find, that Local 254, SEIU,
is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Section 8(b)(1)(A) of the Act provides that “[i]t shall be an
unfair labor practice for a labor organization or its agents (1) to
restrain or coerce (A) employees in the exercise of the rights
guaranteed in section (7) [of the Act].”
Section 7 of the Act provides that “[e]mployees shall have
the right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any or
all such activities except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment as authorized in sec-
tion 8(a)(3).”
Under Section 7 of the Act, union members have a right to
participate in internal union affairs, to question the wisdom of
their representation, and to attempt to redirect its policies or
negotiating strategies.
It appears clear, however, that a union can demand team-
work, loyalty, and cooperation from its appointed officials, to
include shop stewards and representatives to labor management
committees, and that this power to demand teamwork, loyalty,
and cooperation is such that a union can remove an appointed
union official from his position without violating the Act if the
union determines that the appointed union official is not a team
player or isn’t loyal, or is not cooperative.
A comparison between the Supreme Court decisions in Fin-
negan v. Leu, 456 U.S. 431 (1982), which dealt with an ap-
pointed union official and Sheet Metal Workers v. Lynn, 488
U.S. 347 (1989), which dealt with an elected union official,
makes this clear.
The Board has also addressed this issue, maybe most nota-
bly, in Shenago, Inc., 237 NLRB 1355 (1978), where one of the
issues was whether the union violated Section 8(b)(1)(A) of the
Act when it removed a member from his appointed position as
safety committee chairman because of his activities in connec-
tion with an internal union election, i.e., he supported the can-
didacy of the losing candidate for union President.
The Board found no violation of the Act in Shenago, Inc.,
supra, and held:

The issue is one of balancing the employee’s Section 7
right to engage in internal union affairs against the legiti-
macy of the union interest at stake in the particular case.
Thus, in Carpenters Local Union No. 22, United Brother-
hood of Carpenters and Joiners of America, AFL–CIO
(William Graziano, d/b/a Graziano Construction Com-
pany), 195 NLRB 1 (1972), the union had no legitimate
interest in fining a member for opposing the incumbent
union offices, so the balance was properly struck in favor
of the employee and the violation was found. Similarly, in
General American Transportation Corporation, 227
NLRB 1695 (1977), the Board found an 8(b)(1)(A) viola-
tion where the union removed the steward from office be-
cause he filed an unfair labor practice charge with the
Board. There, the union had no legitimate interest in de-
feating employee access to the Board. See, generally,
Scofield, et al. v. NLRB, 394 U.S. 423, 428–430 (1969).
Here, however, the Union does have a legitimate inter-
est in placing in offices such as chairman of the safety
committee those people it considers can best serve the Un-
ion and its membership. Retention of a plant safety com-
mittee chairman who is hostile to or in disagreement with
the leadership may be undesirable or ineffective for a host
of valid reasons. That this may add up to union hostility
toward having a dissident in such positions and make his
dismissal a reprisal, as it did here, does not alter the case.
The union is legitimately entitled to hostility or displeas-
ure toward dissidence in such positions were teamwork,
loyalty, and cooperation are necessary to enable the union
to administer the contract and carry out its side of the re-
lationship with the employer. In the circumstances of this
case, the Union’s interest outweighs the interest of Ligash-
esky in retaining his office, and therefore, we do not find a
violation in his removal from office or in the March 8
statement to Ligashesky informing him that his removal
was caused by his support for Sadlowski.” (Emphasis
added.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1128

In order to decide the instant case, it is imperative to deter-
mine if Santana was an appointed or an elected union official
and to determine why he was removed as shop steward and as a
representative to the labor-management committee.
B. Shop Steward
Jorge Luis Santana is a custodian at Brandeis University and
represented by the Respondent Union.
On August 8, 1994, he became one of two shop stewards for
the custodians when one of the two custodian shop stewards
resigned and Santana took his place. It is my opinion that
Santana was appointed rather than elected to this position.
The constitution and bylaws of both the SEIU International
and Local 254, Respondent Union, are silent on the issue of
shop stewards. There are a number of officer positions in the
Respondent Union spelled out in the constitution and bylaws
which are filled for a term of years following an election. Shop
steward is not among them. The practice within Respondent
Union, which represents a large number of bargaining units, to
include the 120 or so employees in the bargaining unit at
Brandeis University, approximately 73 of whom are custodians,
is for the union business agent to decide who is to be shop
steward and for how long he or she serves. Sometimes the
business agent will appoint one or more shop stewards for a
particular group of employees or conduct an election between
two or more employees who want to be a shop steward. There
is no term of office if the person becomes a steward.
In the case of Santana one of two shop stewards for the cus-
todians resigned his post. Union Business Agent Cathy Con-
way asked who among the custodians wanted to be a shop
steward and only Santana expressed an interest in becoming a
shop steward. Since only Santana expressed an interest in be-
coming shop steward, Conway said there would be no need for
an election and Santana was named shop steward. In light of
the above I find that Santana was appointed to the position of
shop steward. Again, the union business agent selects the
steward and in deciding who to give the position to either se-
lects someone outright or selects the winner of an election
among those interested in becoming steward. There is no term
of office for shop steward and shop stewards serve at the pleas-
ure of the business agent.
C. Representative to Labor-Management Committee
In October 1995 Santana became a representative to the La-
bor Management Committee. The collective-bargaining
agreement between Respondent Union and Brandeis University
called for the establishment of a Labor-Management Commit-
tee. There was to be five representatives on the Committee
from management and five from Respondent Union. The con-
tract specifically provided that the union representatives to the
Committee would be elected for 3-year terms.
Union Business Agent Conway asked the custodians who
among them wanted to be on the labor-management committee.
The only one expressing an interest was Santana who submitted
a nominating petition signed by some fellow custodians sup-
porting his candidacy. Since only Santana expressed an interest
he was designated one of the union representatives to the labor-
management committee. The committee meets to discuss mat-
ters of mutual concern to management and workers so that
operations run more smoothly, more efficiently, and more fairly
at Brandeis.1 I find that Santana’s position as a member of the
labor-management committee was an elected rather than an
appointed union position because the contract between the
Union and Brandeis University called for the union representa-
tives to the committee to be elected and once elected they held
office for a term of 3 years.
D. Removal of Jorge Luis Santana as Shop Steward and Rep-
resentative to Labor-Management Committee
The next issue to decide is why was Santana removed as
shop steward and representative to the labor-management com-
mittee.

1 ARTICLE XXX LABOR-MANAGEMENT COMMITTEE
Effective upon execution of this Agreement, a joint Labor-
Management Committee (the “Committee”) shall be formed, consisting
of 5 representatives of the Union and 5 representatives of the Univer-
sity.
Union representatives shall be elected for three year periods by se-
cret ballot from each of the following areas:

Grounds 1 representative
Crafts 2 representatives
Custodians 2 representatives

The University shall designate its representatives. In addition, the
committee can call upon other individuals and resources as necessary.
The committee may also decide to perform its work through the use of
subcommittees or other combinations.
The committee shall meet a minimum of once every month for the
purpose of discussing and attempting in good faith, through mutual
cooperation and creativity, to solve problems that interfere with the
ability of the bargaining unit to remain a viable, competitive source of
custodial, grounds and trade services for the University. The parties
knowledge that in light of competitive pressures in the marketplace,
they face a joint challenge to provide the best possible service to the
University in the most efficient manner. The committee shall attempt
to explore new ways of working together effectively, including but not
limited to techniques of performing and evaluating work, new methods
of maximizing quality and efficiency, and new ways of joint problem-
solving. The University may, at its discretion, provide training and/or
other support for the Committee to enhance its work. The committee
shall attempt to use techniques such as brainstorming, quality initia-
tives, experimentation and incentives to generate new and better ways
of serving the University.
The parties agree that the committee shall not be a substitute for col-
lective bargaining, but it will serve as a new approach to the parties’
relationship, designed to make it more productive. Nothing in this
agreement shall limit the University from using other quality-enhancing
training and development techniques.
Bargaining unit members of the committee will be given release
time to perform Committee work when it arises during their regular
work hours, and shall be given compensatory time at time and one half
when such committee work, as directed by the University, occurs out-
side their regularly scheduled hours.

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1129
In December 1995, a number of custodians were docked a
day’s pay for not showing up for work on a snow day when the
University had shut down because of the snow.
Apparently, in the past, if the University was shut down be-
cause of the weather, and custodians who were supposed to
report to work, even if the University was closed, couldn’t get
to work because of the weather conditions they would still be
paid. The 1995–1996 winter was a particularly harsh winter in
the northeast as many of us remember and some custodians
couldn’t get to work on several different days when the Univer-
sity was otherwise shut down due to weather conditions.
On January 17, 1996, Santana filed a grievance over the fail-
ure of the University to pay custodians for these days missed.
The grievance was resolved with the input of Business Agent
Cathy Conway with all the grievants being made whole by
getting paid the moneys they had been docked and an agree-
ment in the future that if an essential employee couldn’t get to
work because of weather conditions the particulars of each
incident would be examined on a case-by-case basis and if the
absent employee had a good excuse the employee would be
paid even though the employee never made it to work.
Unsatisfied with the handling of the grievance by his union
superiors, Santana encouraged a number of custodians to file a
class action grievance on March 18, 1996, which was resolved
as noted above but Santana complained about that disposition
on April 26, 1996. Santana sought to reopen the entire question
of who is an essential employee and what are the effects of that
designation on issues such as overtime. This was done without
consulting with his union superiors. In short, Santana’s com-
plaints and actions severely undercut the authority of Business
Agent Conway.
On May 6, 1996, Santana presented two petitions to Con-
way. One petition, signed by 32 custodians, sought the selec-
tion of Ricardo Vasquez as shop steward and the second peti-
tion, signed by 38 custodians, nominated Santana for the posi-
tion of chief steward and sought an early election for that posi-
tion. The chief steward’s position was one which had tradition-
ally been an appointed position and for which there was no
opening since, in the Union’s opinion, the incumbent chief
steward, Jack O’Malley, was doing a good job.
Two days later on May 8, 1996, Business Agent Cathy Con-
way sent a letter to Jorge Luis Santana advising him that he was
being removed from his positions as shop steward and repre-
sentative to labor management committee. The letter stated in
pertinent part:

Pursuant to our recent telephone conversations and discus-
sions, I am investigating several problems reported by our
members involving the two (2) representational positions you
hold on behalf of Local 254—i.e., Custodial Shop Steward
and Custodial Labor-Management Committee representative.

As I explained to you in the those conversations, I want to
provide you an opportunity to understand these problems by
way of a written outline of the complaints brought to my at-
tention over the last few weeks.

First, with regard to your role and responsibilities as Shop
Steward, the following issues have been raised:

1) inappropriate handling of grievances, including:
• failure to consult with grievant about appeal to next
level
• unauthorized communications to the Director of
FMD concerning grievances (two instances)
• conducting unauthorized Union meetings with sub-
groups of employees
• failing to invite and include all Union members in
said meetings
• utilizing said meetings for activities that are injuri-
ous to Union members and cause dissension within the
Union
• failure to disclose information about grievances to
Business Agent

With regard to your Labor-Management Committee position:
• failure to work cooperatively with the other Custo-
dian LMC representative
• failure to disclose information about LMC business
with LMC team and Business Agent

Please be advised that the problems cited above have been re-
ported by members and/or directly observed or experienced
by me.

The bottom line is simply this: We are a Union charged with
working together to further the interests of our membership.

It has become increasingly clear that I cannot rely on your co-
operation in carrying out our responsibilities to our member-
ship.

Therefore, effective immediately:

1) I am removing you from the position of Shop
Steward at Brandeis University;
2) I am removing you from the Labor-Management
representative position at Brandeis University;
3) I am requesting that you turn over all Union records
and materials, immediately. You may turn over these
items to either Jack O’Malley or me at your earliest con-
venience.

This action is unfortunate, but necessary, in order to ade-
quately protect the Union and its membership at Brandeis
University.

As the hearing before me Conway testified, in pertinent part,
as follows:

Q. Why did you remove Mr. Santana as a Shop Stew-
ard?
A. I removed Mr. Santana for several reasons. Over a
period of roughly 2 months prior to my decision to remove
him, I had received calls from members at Brandeis and

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1130
had several communications on site with members in the
course of my visits and activities at Brandeis, complaining
about Mr. Santana’s activities as a Shop Steward.
There were at least two incidences where grievance
handling became a specific problem, and Mr. Santana was
also conducting meetings with different groups of the
membership. And I specifically received complaints about
the fact that he was meeting at the time and speaking in
Spanish. Members were not invited and when they en-
tered the meeting, they said that the conversation stopped.
Those were some of the specific complaints received from
the membership regarding his activities as Shop Steward,
and were the reason I began to really look at the execution
of his duties during that time period.
Q. Did this conduct violate the Constitution of Local
254?
A. Yes, it did.
Q. Did you remove Mr. Santana because he was
nominated for the position of Chief Steward?
A. No, I did not.
Q. Was Mr. Santana, in fact, nominated for the posi-
tion of Chief Steward?
A. Well, Mr. Santana certainly submitted a nomina-
tion form. The position of Chief Steward was in no way
under consideration for the purposes of nomination or
election at Brandeis. Chief Steward is a position that has
always historically been appointed, one that carries with it,
pursuant to the collective bargaining unit, certain respon-
sibilities at the higher levels of other grievance process.
So the Chief Steward is always served at the discretion of
the business agent at Brandeis University.
Q. Do you need a reason to remove a Shop Steward?
A. Certainly not any type of formal or technical rea-
son, but in this case I had several.
Q. Was there a vacancy for the position of Chief
Steward?
A. No, there was not.

Santana is fluent in both English and Spanish. Over 50 per-
cent of the custodians speak Spanish and have little or no facil-
ity in English. Santana admits he held meetings with Spanish
only speaking custodians but all custodians were welcome and
he was not aware he was not supposed to do so.
Santana concedes he filed a second-step grievance on behalf
of member Michael Dinnuno who lost his grievance at step one
but didn’t want his grievance appealed to step two. However,
Santana believed as a shop steward he could appeal to step two
and thought, inaccurately, that Dinnuno, who lost at step one,
would want him to do so.
When all is said and done it is obvious that the union leader-
ship, did not feel, rightly or wrongly, that Santana was a team
player, loyal, and cooperative and, accordingly, Respondent
Union was within its rights to remove Santana from his ap-
pointed union position as shop steward without violating the
Act. Santana’s removal did not affect his job at Brandeis Uni-
versity nor the pay and benefits associated with that job.
Santana’s removal as elected representative to the Labor-
Management Committee is a different matter.
The Labor-Management Committee post is a 3-year elected
position under the collective-bargaining agreement and Santana
was removed for the two reasons stated in Conway’s letter to
Santana of May 8, 1996, which is set out above. Suffice it to
say, Santana denied before me, that he failed to work coopera-
tively with the other custodian committee representative or
failed to disclose information about committee business with
the committee team and business agent. No evidence other
than Conway’s conclusions on these allegations was presented
by the Respondent Union. Conway testified that Santana’s
running for chief steward was not the reason he was removed
from his union positions; however, she didn’t say it wasn’t a
factor and the juxtaposition of events is such that I find, as a
practical matter, that it was a major factor in Santana’s removal
from the two union positions he held.
Indeed I find that Respondent Union perceived Santana as a
“pain [in] the neck” mainly because of his actions surrounding
the snow day grievances and his running for chief steward.
These are not valid reasons to remove a member from an
elected union position because they are protected employee
activity. There is no evidence that the custodians were dissatis-
fied with Santana’s representation of them on the Labor-
Management Committee and since it was an elected position
Respondent Union was without authority to remove him from
that elected position because of his protected activity taking
positions contrary to the union leadership on the disposition of
grievances and his candidacy for the chief steward’s position.
Accordingly, the removal of Santana from his position as repre-
sentative to the labor-management committee violated Section
8(b)(1)(A) of the Act.2
REMEDY
The remedy in this case should be a cease-and-desist order,
the reinstatement of Santana to his elected position as represen-
tative to the labor-management committee for the remainder of
his term, the payment of a sum of money by Respondent Union
to Santana that equals the amount of money Santana lost be-
cause of his unlawful removal from office, with interest, and
removal from Santana’s union file of any reference to his
unlawful removal from his position as representative to the
labor-management committee.
CONCLUSIONS OF LAW
1. Brandeis University is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.

2 Santana vigorously protested his removal from both positions in
many correspondences with Respondent Union leadership and clearly
exhausted his internal union remedies. See GC Exhs. 18–22.

SERVICE EMPLOYEES LOCAL 254 (BRANDEIS UNIVERSITY) 1131
3. Respondent Union violated Section 8(b)(1)(A) of the Act
when it removed Jorge Luis Santana from his elected position
as representative to the labor-management committee.
4. This unfair labor practice effects commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]