Hospital and Institutional Workers' Union Local 250

National Labor Relations Board - Board Decisions

Apr 24, 1980

248 N.L.R.B. 1390 (N.L.R.B. 1980)

1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital and Institutional Workers' Union Local
250, Service Employees International Union,
AFL-CIO and Dameron Hospital Association.
Case 32-CB-524
April 24, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO,
AND TRUESDALE
On January 25, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order as modified
herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Hospital and Institutional Workers' Union Local
250, Service Employees International Union, AFL-
CIO, Stockton, California, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, as so modified:
1. Insert the following for paragraph 2(b) and re-
letter the remaining paragraphs accordingly:
"(b) Inform, in writing, each of the above-named
employees against whom action was taken that all
record of such action will be expunged."
2. Substitute the attached notice for that of the
Administrative Law Judge.
We shall modify the Administrative Law udge's recommended
Order by also directing Respondent to inform, in writing, each of the em-
ployees against whom action was taken that all record of such action will
be expunged. See Retail Clerks Union Local 1364, Retail Clerks Interna-
tional Association. AFL-CIO; Retail Clerks Union Local 17, Retail Clerks
International Association. AFL-CIO (Food Employers Council, Inc.), 240
NLRB No. 132 (1979).
248 NLRB No. 187
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT violate Section 8(b)(1)(A) of
the National Labor Relations Act, as amended,
by charging violation of our constitution and
bylaws, and subjecting the following named
members to an intraunion trial before a hearing
officer, resulting in recommended fines of said
members, in contravention of the amnesty pro-
vision of the strike settlement agreement be-
tween this Union and Dameron Hospital Asso-
ciation, dated December 20, 1978:
Emily Selles
Ed Ruhstaller
Patti Scherrow
Caroline Flores
Cecilia Barny
Alex Mantalvanos
Ted Gerolimtos
John Siliverdis
Steve Siliverdis
Dee McKnight
Scott Hall
Dixie Arnold
Candy Nevis
Joan Gonzalez
Brenda Castro
Donna Kenmer
Virginia Guzman
Ed Lucero
Melody McCaul
WE WILL NOT in any like or related manner
restrain or coerce employees in exercise of the
rights guaranteed them by Section 7 of the
Act.
WE WILL expunge all record of action here-
tofore taken which resulted in the recommend-
ed fining of the above-named employees, in-
cluding, without limitations, filing of charges,
publicity of trial, and trial.
WE WILL inform, in writing, each of the
above-named employees against whom action
was taken that all record of such action will be
expunged.
HOSPITAL AND
WORKERS' UNION
VICE EMPLOYEES
UNION, AFL-CIO
INSTITUTIONAL
LOCAL 250, SER-
INTERNATIONAL
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This
case was heard in Stockton, California, on October 10,
1979.1 The complaint, issued June 20, is based on a
charge filed May 17 by Dameron Hospital Association
(Dameron), and a first amended charge filed by Da-
' All dates hereinafter are within 1979, unless stated to be otherwise.
HOSPITAL AND INSTITUTIONAL WORKERS' UNION LOCAL 250 1391
meron on June 14. The complaint alleges that Hospital
and Institutional Workers' Union Local 250, Service Em-
ployees International Union, AFL-CIO (Respondent or
Union), violated Section 8(b)(1)(A) of the National
Labor Relations Act, as amended.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of General Counsel, Respondent, and the Charg-
ing Party.
FINDINGS OF FACT
I. JURISDICTION
Dameron is a California nonprofit corporation, with a
principal place of business in Stockton, California, where
it is engaged in the operation of an acute care facility.
During the past calendar year Dameron, in the course
and conduct of its business operations, received gross
revenues in excess of $250,000, and purchased and re-
ceived goods in excess of $5,000 which originated out-
side the State of California.
I find that Dameron is, and at all times material herein
has been, an employer within the meaning of Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Hospital and Institutional Workers' Union Local 250,
Service Employees International Union, AFL-CIO, is,
and at all times material herein has been, a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The facts upon which the findings and conclusions
herein are based were stipulated by the parties and are
not in dispute. The basic facts are as follows:
Dameron employees who are union members were on
strike from November 12, 1978, until December 20, 1978.
On December 20, 1978, Dameron and Respondent en-
tered into a strike settlement agreement which contains,
inter alia, a negotiated "amnesty" clause providing in
pertinent part:
No employees shall suffer any retaliation, discrimi-
nation, or disciplinary action by either the Hospital
or the Union because of their participation or non-
participation in the strike ....
On May 14, Respondent sent to 19 of its members a
letter stating that charges had been filed against them for
their nonparticipation in the strike, and further stating
that an intraunion hearing would be held concerning the
charges. Respondent distributed to Dameron's employees
a bulletin dated May 1, inviting all interested employees
to attend a "trial for Dameron strike breakers" to take
place on June 2, 1979.
On June 2 Respondent tried said 19 individuals before
William Healy, Esquire, who was the hearing officer.
The purpose of the hearing was to determine whether
sanctions could or would be imposed under the provi-
sions of Respondent's constitution and bylaws.
On July 24, Healy issued a report entitled "Report to
the Trial Board Members of the Executive Board,"
which contained a recitation and discussion of the evi-
dence taken at the trial on June 2, and which included
recommendations to the board. The report recommended
fines of approximately 35 for all but three of the ac-
cused. A fine of S100 was recommended for Emily
Selles, and fines of $250 each were recommended for
John Siliverdis and Steve Siliverdis.
As of the date of the hearing herein, the recommenda-
tions of the hearing officer, Healy, had not been acted
upon by Respondent.
B. Respondent's Contentions
The Union's position in this case is two-fold: (1) The
Board lacks jurisdiction to interfere in the internal affairs
of Respondent; (2) if the Board has jurisdiction to inter-
fere in said internal affairs, any interference is premature,
since no action has occurred which is in violation of the
strike settlement agreement.
Respondent's first argument has been conclusively an-
swered by the Supreme Court of the United States, and
by the National Labor Relations Board.
Section 8(b)(l)(A) of the Act makes it an unfair labor
practice for a union to "restrain or coerce . . . employ-
ees in the exercise of the rights guaranteed in section 7,"
with the proviso that said section "shall not impair the
right of a labor organization to prescribe its own rules
with respect to the acquisition or retention of member-
ship therein ... ."
In Scofield, et al. v. N.L.R.B.,2 the Supreme Court
stated, inter alia, that a union may only enforce a rule
which "impairs no policy Congress has imbedded in the
labor laws .... "
The Board had occasion to consider the principle from
Scofield quoted above, when it decided Stationary Engi-
neers, Local 39, International Union of Operating Engi-
neers, AFL-CIO (The San Jose Hospital and Health
Center, Inc.) in 1979.3 In that case, as in the one consid-
ered herein, a union sought to impose discipline on some
of its members after negotiating an amnesty clause in a
strike settlement agreement. In holding that the union le-
gally could not repudiate its contractual commitment on
the ground of internal discipline, the Board stated, inter
alia:
... notwithstanding Respondent's assertion here
that its conduct served its legitimate interest in
maintaining union solidarity during a lawful strike,
such interest must give way to national policy. Ac-
cordingly, we find that Respondent's disregard for,
and violation of, its collectively bargained-for am-
nesty agreement impairs Congressional policy em-
bedded in the labor laws and that, under the princi-
ples of Scofield, its disciplining of [the member] is
not protected by the proviso to Section 8(b)1)(A).
2 394 U.S. 423 (1969).
a 240 NLRB No. 131. See also Retail Clerks Union Local 1364, etc.
(Food Employers Council Inc.), 240 NLRB No 132 (1979).
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We therefore conclude that Respondent has violat-
ed Section 8(b)(1)(A) as alleged.
Respondent argues that Local 39 is inapplicable to the
instant case, since the amnesty clause language there was
broader than here, i.e., that "[the Union] shall not inter-
fere with, threaten, harass or question any employee with
regard to activities . . ." is broader than "No employee
shall suffer any retaliation, discrimination, or disciplinary
action .... " That argument is not supported by the
Board's Decision in Local 39. The Board grounded that
Decision upon a violation of the union's agreement,4 and
a glance at the agreement here involved shows that it is
within the ambit of Local 39. "Disciplinary action" pa-
tently includes the actions here taken by Respondent.
After charging the 19 employees, and issuing to all em-
ployees a bulletin to notify them of Respondent's plan to
place the accused 19 on intraunion trial, Respondent
tried the 19 before a hearing officer, and that officer rec-
ommended disciplinary fines. The fact that payment of
the fines has not been demanded by the Union is immate-
rial. The Union has not notified the 19 employees that
the hearing officer's report is not, or will not be, accept-
ed by the Union, nor have the 19 employees been told
by the Union that they will not be subjected to fines or
any other disciplinary action. The 19 have been disci-
plined whether or not they have been required to pay
the fines. Further, the 19 have been retaliated against,
solely because of their actions that were specifically ex-
cused by the Union in its agreement with Dameron. Re-
spondent does not argue against the obvious fact that the
sole reason for the trial and its attendant publicity was in
retaliation against the excused actions of the 19. Finally,
Respondent does not attack the language of its agree-
ment with Dameron, or its binding effect. The amnesty
clause is clear and unequivocal; the contract is a valid
one; the amnesty clause can be invoked by the 19 disci-
plined employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, in violation of Section 8(b)(1)(A)
of the Act, I shall recommend that it be ordered to cease
and desist therefrom, and take certain affirmative actions
designed to effectuate the policies of the Act.
'In Local 39 the Administrative Law Judge stated, inter alia, and the
Board agreed, that the respondent clearly and unequivocally waived its
right to discipline or to question an employee with regard to strike activ-
ity. Thus, Respondent herein argues from a false premise. The Adminis-
trative Law Judge and the Board in Local 39 specifically referred to dis-
cipline of employees, and that is the same problem presented herein.
CONCLUSIONS OF LAW
1. Dameron Hospital Association is, and at all times
material herein has been, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. Hospital and Institutional Workers' Union Local
250, Service Employees International Union, AFL-CIO,
is, and at all times material herein has been, a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By charging violation of Respondent's constitution
and bylaws, and subjecting the members named below to
an intraunion trial before a hearing officer, resulting in
recommended fines of said members, in contravention of
the amnesty provision of the strike settlement agreement
between the parties dated December 20, 1978, Respon-
dent violated Section 8(b)(l)(A) of the Act:
Emily Selles
Ed Ruhstaller
Patti Scherrow
Caroline Flores
Cecilia Barny
Alex Mantalvanos
Ted Gerolimtos
John Siliverdis
Steve Silverdis
Dee McKnight
Scott Hall
Dixie Arnold
Candy Nevis
Joan Gonzalez
Brenda Castro
Donna Kenmer
Virginia Guzman
Ed Lucero
Melody McCaul
4. The unfair labor practices described in paragraph 3
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this
case, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER5
The Respondent, Hospital and Institutional Workers'
Union Local 250, Service Employees International
Union, AFL-CIO, Stockton, California, its officers,
agents, and representatives, shall:
1. Cease and desist from:
(a) Violating Section 8(b)(1)(A) of the Act by charging
violation of Respondent's constitution and bylaws, and
subjecting the foregoing members to an intraunion trial
before a hearing officer, resulting in recommended fines
of said members, in contravention of the amnesty provi-
sion of the strike settlement agreement between Respon-
dent and Dameron Hospital Association dated December
20, 1978.
(b) In any like or related manner restraining or coerc-
ing employees in exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
HOSPITAL AND INSTITUTIONAL WORKERS' UNION LOCAL 250 1393
(a) Expunge all record of action heretofore taken
which resulted in the recommended fining of the above-
named employees, including, without limitation, filing of
charges, publicity of trial, and trial.
(b) Post at its Stockton, California, business office and
all meeting halls, wherever located, copies of the at-
tached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent's rep-
a In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
resentative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Furnish said Regional Director signed copies of
such notice for posting by Dameron Hospital Associ-
ation, if it is willing, at places where it customarily posts
notices to employees.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
; U.S. Government Printing Office: 1980--311 458 1