Hospital and Institutional Workers Union, Local 250

National Labor Relations Board - Board Decisions

Jan 26, 1981

254 N.L.R.B. 834 (N.L.R.B. 1981)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hospital and Institutional Workers Union, Local
250, SEIU, AFL-CIO and Associated Hospitals
of the East Bay. Case 32-CB-740
January 26, 1981
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On November 12, 1980, Administrative Law
Judge James S. Jenson issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief. The Charging
Party filed cross-exceptions and a brief in support
thereof and in answer to Respondent's exceptions.
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
briefs and has decided to affirm the rulings,' find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Hospital and
Institutional Workers Union, Local 250, SEIU,
AFL-CIO, San Francisco, California, its officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
i In fn. 6 of his Decision. the Administrative Law Judge denied Rc-
spondent's defense that consideration of the issues herein should be de-
ferred to the arbitrator. We agree on the grounds that it is Board policy
to refuse to defer in this situation because the case involves alleged viola-
tions of Sec. 8(b)(l)(A) of the Act General American Iransportartion Cor-
poration, 228 NLRB 808, 811 (1977). Chairman Fannilng and Member Jen-
kins would not defer in any ecent based on their opiiron in General
American roansporiation, upra at 808.
DECISION
STATEMENT OF THE CASF
JAMES S. JNSON, Administrative Law Judge: This
case was heard before me in San Francisco, California,
on September 5, 1980,1 based on a complaint issued on
May 16, pursuant to a charge filed on April 17. The
complaint, as amended at the hearing, alleges that Hlospi-
tal and Institutional Workers Union, Local 250, SEIU,
AFL-CIO, herein called Respondent, violated Section
8(b)(1)(A) of the Act by processing charges against cer-
tain of its members in violation of an arbitrator's final
I All dates herein are i 19q0. unless otherwise slated.
254 NLRB No. 103
and binding strike settlement decision. Respondent's
answer, amended at the hearing, admits that the arbitra-
tor issued a final and binding decision providing in perti-
nent part that "There shall be no retaliation, penalty, or
discrimination by either Party, [or] their . . members
against any person . . . by reason of activities or partici-
pation or lack of participation in the strike .. ." and that
on April 2 and 3 it advised five of its members that
charges had been preferred against them in connection
with their conduct during the strike, but denies such
action contravened the arbitrator's strike settlement
agreement or violated the Act. All parties were given
full opportunity to appear, to introduce evidence, to ex-
amine and cross-examine witnesses, to argue orally, and
to file briefs. Briefs were filed by the General Counsel,
Respondent, and the Charging Party, and have been
carefully considered.
Upon the entire record in the case, and having consid-
ered the post-hearing briefs, I make the following:
FINDINGS OF FACT
I. JURISI)ICI'oN
Associated Hospitals of the East Bay, herein called
Associated, is a multiemployer association of health care
facilities, 2 which exists for the purpose, inter alia, of rep-
resenting its employer-members in negotiating and ad-
ministering collective-bargaining agreements with var-
ious labor organizations, including Respondent. During
the past 12 months, the employer-members of Associated
derived gross revenues in excess of 250,000 and pur-
chased and received goods and services valued in excess
of $5,000 which originated outside the State of Califor-
nia. It is admitted and found that Associated and its em-
ployer-members are now, and each has been at all times
material herein, employers engaged in commerce and in
business affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
II. THE I.ABOR ORGANIZATION INVOLVED
It is admitted and found that Respondent is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. HE AIL.EGEI) UNFAIR I.ABOR PRACTICES
The facts outlined herein were stipulated and are not
in dispute.
From April 16, 1979, until June 11, 1979, approximate-
ly 1,800 employees of Associated, who were represented
for collective-bargaining purposes by Respondent, were
on strike. At issue were the proposed changes in the
1977-79 collective-bargaining agreement. On May 31,
1979, the Federal Mediation and Conciliation Service
recommended to the parties that the unresolved issues
"be submitted to Med-Arb before Arbitrator Sam
Kagel." Pursuant to an agreement between the parties
that Kagel's decision would be final and binding, Kagel
commenced hearings on the unresolved issues on June 4,
z Alta Bales Hslpital. Herrick Memorial Hospital. Providence Hospi-
tal, Pcralta Samuel Merritt ospital, Children's Hospital Medical Center
if Northerni California. ind Vespcr NMenvmal Center
834
HOSPITAL AND INSTITUTIONAL WORKERS UNION, LOCAL 250
1979. The parties agreed that one of the issues to be re-
solved by Kagel was "a back-to-work Agreement and
amnesty question relative to Local 250." On June 8,
Kagel issued his "DECISIONS Relative to Return to
Work, Amnesty, Wages, Term of Agreement, and Dis-
charging Cases," which provides in pertinent part as fol-
lows:
DECISIONS:
A. RETENTION OF JURISDICTION
The Med-Arbiter retains jurisdiction to make a
final and binding decision as to any disputes that
may occur relative to the interpretation and applica-
tion of the following Decisions.
B. RETURN TO WORK AND AMNESTY
l.(a) There shall be no retaliation, penalty, or dis-
crimination by either Party, their Employees, agents
or members against any person, institution, organi-
zation, or firm by reason of activities or participa-
tion or lack of participation in the strike, or in any
way supporting the strike. No striking Employee,
by reason of the strike, shall suffer any demotion,
change in pay status or reclassification upon return
to work.
On April 2 and 3, Attorney William A. Healy, advised
five of the Respondent's members, Margarite Snead,
Gertrude O'Donnell, Gary Watt, Mamie Williams, and
Rose Vaughn, 3 that he had been directed by Respon-
dent's secretary-treasurer and president to inform them
that individual members of Respondent had filed "ex-
tremely serious" charges against each of them in connec-
tion with their conduct during the strike; that he, as
hearing officer, would conduct a hearing concerning the
charges pursuant to Respondent's constitution and
bylaws; that his findings would be presented to Respon-
dent's executive board "for their ultimate determination
and ruling." Healy's letter quoted from subsection (d) of
article XVIII, Charges, Trials and Punishment of the
Constitution and Bylaws, to the effect that "The Execu-
tive Board of the Local Union shall act as the trial body.
The accused may appear in person with witnesses to
answer the charges against him and shall be afforded a
full and fair hearing. He or she may select a member of
his Local Union or an attorney, in the presentation of his
defense." The letter goes on to state "The Union shall
have the burden of proof on this matter and must present
their case initially." (Emphasis supplied.)
On April 17, prior to the scheduled date of hearing,
Associated filed the instant charge. None of the five em-
ployee-members attended the hearing on the charges,
which was held on April 23. The record does not dis-
close the outcome of the hearings, nor that the employ-
ee-members have ever been advised that the charges
against them have been dropped or dismissed.
I All were employed by A4ssKoiated member hospitals
Positions of the Parties
The General Counsel, citing as authority Stationary
Engineers, Local 39, International Union of Operating En-
gineers, AFL-CIO (San Jose Hospital and Health Center,
Inc.), 240 NLRB 1122 (1979); Retail Clerks Union Local
1364, Retail Clerks International Association; Retail Clerks
Union Local 17 Retail Clerks International Association,
AFL-CIO (Food Employers Council, Inc.), 240 NLRB
1127 (1979); and Hospital and Institutional Workers' Union
Local 250, Service Employees International Union, AFL-
CIO (Dameron Hospital Association), 248 NLRB 1390
(1980), contends that Respondent acted unlawfully in
permitting the charges against its members to be noticed
for hearing, and conducting the hearing which was, in
effect, a trial of its members for their strike activities
after Respondent specifically contracted away its right to
do so. The General Counsel contends that the only dis-
tinction between this case and the Dameron case is that
in Dameron the parties negotiated directly the amnesty
language, whereas in the instant case, they submitted the
issue of amnesty to the mediator-arbitrator, whose final
and binding decision contained essentially the same lan-
guage, i.e., that there would be no retaliation, penalty, or
discrimination against any employee because of participa-
tion or nonparticipation in the strike.4 Also citing the
Dameron and San Jose Hospital cases, Associated argues
that Respondent violated the final and binding amnesty
decision of the mediator-arbitrator by (I) entertainment
of the charges against the five employee-members: (2)
notifying the employee-members that a "trial" would be
held on those charges; (3) requesting their presence at
the trial; (4) holding the "trial" and any report resulting
from those proceedings; and (5) the continuing pendency
of the entire affair.
Respondent argues that the complaint should be dis-
missed since under the mediator-arbitrator's "retention of
jurisdiction," Associated is obligated to pursue any dis-
pute over his decision with Med-Arbiter Kagel; that
while Kagel's "amnesty" ruling prohibits "retaliation,
penalty or discrimination . . ." no penalty or discrimina-
tion has been imposed, and retaliation involves the taking
of some action which adversely affects the person retali-
ated against. It argues that "when a member has been
charged with an offense, the Union is entitled to either
exonerate that person or to find that person guilty and to
take appropriate action. Here, each of the individuals is
entitled to exoneration if innocent, and a finding of guilt
if not." (Emphasis supplied.) It argues that "the Union's
internal democratic process requires at least that the
Union be given the opportunity to determine whether
the charges are valid and whether any action may be
taken pursuant to Mr. Kagel's ruling." Therefore, it is
claimed, the processing of the charges is premature since
the Union has not retaliated against any individual. An
additional argument is made that "if there has been a vio-
lation of anything, it is not of a collective-bargaining
agreement but rather an award pursuant to the med-arbi-
tration process. No Board case has found that a union's
rhc Reponldtnl hecrlin as ill, tie Rcsptodlclt in the Daomre,im
ctae
835
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct purportedly in violation of such a decision also
constitutes a violation of Section 8(b)()(A)."5
Conclusions
The Dameron and San Jose Hospital cases are clearly
dispositive of the issues raised by the instant complaint.
It is admitted that Med-Arbitrator Kagel "issued a final
and binding decision as a strike settlement" that there
would be "no retaliation, penalty, or discrimination by
either Party, their Employees, agents or members against
any person . . . by reason of activities, participation or
lack of participation in the strike, or in supporting the
strike." Inasmuch as the parties had agreed through the
collective-bargaining process to be bound by Kagel's de-
cision, Respondent's attempt to distinguish cases involv-
ing a violation of an amnesty agreement arrived at
through collective bargaining from an award pursuant to
a final and binding "med-arbitration process," is clearly
without merit.
Administrative Law Judge Russell L. Stevens, whose
findings and conclusions were affirmed by the Board, set
forth in the Dameron case the principles applicable to
this case:
Section 8(b)(l)(A) of the Act makes it an unfair
labor practice for a union to "retain or coerce . ..
employees in the exercise of rights guaranteed in
section 7," with the proviso that said section "shall
not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition
or retention of membership therein ... ."
In Scofield, e al. v. N.L.R.B., 2 the Supreme
Court stated, inter alia, that a union may only en-
force a rule which "impairs no policy Congress has
imbedded in the labor laws . . . ."
The Board had occasion to consider the principle
from Scojield quoted above, when it decided Sta-
tionary Engineers, Local 39, International Union of
Operating Engineers, A'L-CIO (The San Jose Hospi-
tal and Health Center, Inc.), in 1979. 3 In that case,
as in the one considered herein, a union sought to
impose discipline on some of its members after ne-
gotiating an amnesty clause in a strike settlement
agreement. In holding that the union legally could
not repudiate its contractual commitment on the
ground of internal discipline, the Board stated, inter
alia:
s As the transcript herein shows, after the General Counsel rested his
case, Respondent made an offer of proof that John Ring, Responldett
president, would testify that during the course of the Med-Arh process.
he had a conversation with Kagel, outside the presence of any employer
representative, in which he asked Kagel whether it would be a violation
of Kagel's decision if the Union were ito process charges brought hy
members against other members arising out of their conduct during the
strike so long as the Union did not propose ti fitne or discipline them, and
that Kagel indicated it would not violate his decision. An additional offer
of proof was made that Ring would testify that the Union did not intend
to take any action against any of the individuals charged by way of file
or discipline, "and solely intends to process the charge[sl, to a finding of
guilt or innocence and do nothing further than that." As the record re-
flects. Resplndent's couisel had made arraigenmcilts the previous day
with Ring to appear for the hearing, but he failed to do so MN rjectilon
of both offers of proof has been recnsidered and is affirmed
. . . 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).
We therefore conclude that Respondent has violat-
ed Section 8(b)(1)(A) as alleged.
2 394 U.S 423 (1969)
: 240 NLRH 1122. See also Rertail Clerks Union Local 1364, etc.
(Food Employer Council Inc.), 240 NLRB 1127 (1979).
Thus, it is clear that if a union is party to a strike set-
tlement agreement, or has agreed to be bound by a strike
amnesty provision, actions contrary to the provision are
unlawful.
The question then becomes whether Respondent en-
gaged in conduct in violation of the amnesty agreement
or provision. As noted, the amnesty provision prohibits
"retaliation, penalty, or discrimination by either Party,
their Employees, agents or members against any person
. ." by reason of activities in connection with the
strike. In San Jose Hospital, the Board adopted Adminis-
trative Law Judge Heilbrun's finding that by virtue of
the amnesty agreement, Respondent "clearly and un-
equivocally waived its rights to discipline, or even ques-
tion, any employee with regard to any strike related ac-
tivity." To paraphrase the Administrative Law Judge in
Dameron, retaliation "patently includes the actions here
taken by Respondent." Thus, contrary to the specific
final and binding strike settlement, Respondent sought to
process and has processed to hearing, as characterized by
Attorney Hearing Officer Healy, "extremely serious"
charges against its members in connection with their
conduct during the strike. Healy emphasized the gravity
of the matter by informing the employees that "the Ex-
ecutive Board of the Local Union shall act as the trial
body," that the "accused" could appear "to answer the
charges against him," could "select a member of his
Local Union or an attorney" to present his "defense,"
and that "the Union shall have the burden of proof on
this matter and must present their case initially." To
argue that such conduct does not constitute retaliation
for their conduct during the strike in contravention of
Kagel's strike agreement and amount to unlawful coer-
cion within the meaning of Section 8(b)(1)(A) of the Act,
is sheer folly. The fact that Healy's decision has not been
announced does not help Respondent, nor does the fact
that Respondent may not intend to "fine or discipline"
them. By entertaining the charges, by noticing them for
hearing, and by conducting the hearing, Respondent has
retaliated against its members in violation of the arbitra-
tor's final and binding decision, and has thereby unlaw-
fully restrained and coerced them. Exactly what further
retaliation Respondent has in mind is not clear. In any
event, there is no evidence Respondent has ever advised
the charged employees that it did not intend to fine or
836
HOSPITAL AND INSITUTIONAL WORKERS UNION, LOCAL 250
otherwise punish or discipline them, nor have they been
informed that the charges against them have been
dropped. In this regard, Respondent argues in its brief
that "the Union is entitled to either exonerate that person
or to find that person guilty and to take an appropriate
action." (Emphasis supplied.)
Upon the foregoing, I find that the amnesty provision
in the arbitrator's final and binding decision is clear and
unequivocal and that Respondent has violated the Act as
alleged by entertaining and processing the charges in
violation thereof. 6
IV. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(b)(l)(A)
of the Act, I shall recommend that it cease and desist
therefrom, and take certain affirmative action designed to
effectuate the policies of the Act. In addition to ordering
Respondent to expunge all records of action taken
against the affected employees, and to notify them in
writing, the General Counsel urges that my recommend-
ed Order provide "that Respondent will not retaliate, pe-
nalize or otherwise discriminate against the employees of
any employer, for crossing a picket line when there is a
contractual provision or a mediation-arbitration award
forbidding such conduct by the Respondent." Associated
contends a broad cease and desist from "in any manner
whatsoever" order is appropriate. In Hickmott Foods.
Inc., 242 NLRB 1357 (1979), the Board stated that it
would analyze each case to determine the nature and
extent of the violations committed by a respondent, so
that it could tailor an appropriate order. While the Board
was dealing with violations of Sections 8(a)(3) and
8(b)(2) of the Act in lickmott. it went on to state that
where "it can be further shown that a respondent, either
previous to or concurrently with the discriminatory dis-
charge, engaged in other severe conduct violative of, for
example, Section 8(a)(1) or 8(b)(l)(A), a broader order
may be warranted. Thus repeat offenders and egregious
violators of the Act would be subject to the traditional
Board remedy for conduct which requires broad injunc-
tive relief." In light of the similarity in nature of Respon-
dent's unlawful conduct in Dameron, I conclude the
usual "broad" order to be inappropriate, but that one tai-
lored to Respondent's unfair labor practices in Dameron
and the instant case is appropriate. Accordingly, I shall
recommend that Respondent not retaliate, penalize, or in
any other manner discriminate against the employees of
any employer for their lack of participation in a strike,
where there is a contractual provision or mediation-arbi-
tration award prohibiting such conduct, and that Respon-
dent expunge all record of action heretofore taken which
resulted in the trial of the above-named employees, in-
cluding, without limitations, the filing of charges, public-
ity of the trial, notices and correspondence regarding the
trial, any written or recorded record of the evidence or
testimony made at the trial, and the trial. It shall also be
I Respondent's affirmiative defense that Associated should defer to the
arbitrator's "retenlion of.r juridiclon." and that the issues herein shoullld
be deferred under the Board's "(liver Doctrine" are clearl) ithout
merit. The issues raised herein are cosvered hb the Damron and S.in Jose
Hospital cases
recommended that Respondent inform, in writing, each
of the aforementioned employees against whom action
was taken that all records of such action will be ex-
punged.
CONCLUSIONS OF LAW
1. Associated Hospitals of the East Bay and its em-
ployer-members are, and at all times material herein have
been, employers engaged in commerce and in a business
affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2. Hospital and Institutional Workers Union, Local
250, SEIU, AFL-CIO is, and at all times material herein
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By entertaining charges of violations of Respon-
dent's constitution and bylaws, and subjecting Members
Margarite Snead, Gertrude O'Donnell, Gary Watt,
Mamie Williams, Rose Vaughn to an intraunion trial
before a hearing officer, in contravention of the final and
binding decision of a mediator-arbitrator, dated June 8,
1979, Respondent violated Section 8(b)(1)(A) of the Act.
4. The unfair labor practices described in paragraph 3
above 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:
ORDER 7
The Respondent, Hospital and Institutional Workers
Union, Local 250, SEIU, AFL-CIO, San Francisco,
California, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Entertaining charges of violations of Respondent's
constitution and bylaws, and subjecting the foregoing
members to an intraunion trial before a hearing officer,
in contravention of the final and binding amnesty provi-
sion in the decision of a mediator-arbitrator dated June 8,
1979.
(b) Retaliating, penalizing, or in any other manner dis-
criminating against the employees of any employer for
their lack of participation in a strike, where there is a
contractual provision or mediation-arbitration award pro-
hibiting such conduct.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed to
them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Expunge all record of action heretofore taken
which resulted in the trial of the above-named employ-
ees, including, without limitations, the filing of charges,
publicity of the trial, notices and correspondence regard-
7 In lthe setiel no exceplonlls are filed as proilded h Sec 1()2 4 if he
Rules arid Regulationis of the National l.abhr Relanions Board. he find-
rigs. coicliins, ;anld recommended Order herein shall. as provided in
Sec I(2 4 t he Rles nd Regulations, he adopted by the Board and
hconime Itr fillgs. crilllusirins. arid Order, and all hectrions thereto
slill he tleemned 's a.eid for all purposes
837
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing the trial, any written or recorded record of the evi-
dence or testimony made at the trial, and the trial.
(b) Inform, in writing, each of the above-named em-
ployees against whom action was taken that all record of
such action will be expunged.
(c) Post at its offices and meeting halls, copies of the
attached notice marked "Appendix."8 Copies of said
notice, on forms to be provided by the Regional Direc-
tor for Region 32, after being duly signed by Respon-
dent's authorized representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, inconspicuous places,
including all places where Respondent customarily posts
notices to its members. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Furnish signed copies of the notice to the Regional
Director for Region 32 for posting by Associated Hospi-
tals of the East Bay and its employer-members, if said
employers are willing, at locations where notices to em-
ployees are customarily posted.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
* In the event that this Order is enforced by a Judgment of a United
Staltes Court of Appeals, the words in the nltice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Plursu-
ant to a Judgment of the United States Court of Appeals Enforcing all
Order of the National Labor Relations Board."
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)(l)(A) of the
National Labor Relations Act, as amended, enter-
taining charges of violation of our constitution and
bylaws, and by subjecting our members, Margarite
Snead, Gertrude O'Donnell, Gary Watt, Mamie
Williams, and Rose Vaughn to an intraunion before
a hearing officer, in contravention of the final and
binding amnesty provision in the decisions of a me-
diator-arbitrator, dated June 8, 1979.
WE WI.L NOT retaliate, penalize, or in any other
manner discriminate against the employees of any
employer for their lack of participation in a strike,
where there is a contractual provision or mediation-
arbitration award prohibiting such conduct.
WE WILL NOT in any like or related manner re-
strain or coerce employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
WE WILL expunge all record of action heretofore
taken which resulted in the trial of the above-named
employees, including, without limitations, the filing
of charges, publicity of trial, notices and correspon-
dence regarding the trial, all written or recorded
evidence or testimony made at the trial, and the
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 INSTITUTIONAL WORKERS
UNION, LOCAL 250, SEIU, AFL-CIO
838