Service Employees Intl Union

National Labor Relations Board - Board Decisions

Jun 25, 1974

211 N.L.R.B. 982 (N.L.R.B. 1974)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service Employees' International Union, Local No.
227, AFL-CIO and Children's Rehabilitation
Center, Inc. Case 6-CP-231
June 25, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 30, 1973, Administrative Law Judge
Paul E. Well issued the attached Decision in this
proceeding . Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge to
the extent consistent herewith and to adopt his
recommended Order.
Respondent claims that the Administrative Law
Judge improperly deprived it of its right to challenge
the validity of the expedited election held in Case
6-RM-484. That election was directed pursuant to
the provisions of Section 8(b)(7)(C) following the
dismissal of 8(a)(1), (3), and (5) charges filed by
Respondent . The Regional Director dismissed those
charges in Case 6-CA-6477 upon concluding, on the
basis of his investigation, that the Charging Party
had not bargained in bad faith and that Respon-
dent's strike against the Charging Party was an
unlawful one, and that the employees participating
therein had lost their status as employees for
purposes of Section 8 of the Act, because timely
notice had not been given to the Federal Mediation
and Conciliation Service as required by Section 8(d)
of the Act. The dismissal was sustained by the
General Counsel on appeal.
Respondent's effort to contest the validity of the
expedited election takes the form of an attack upon
the validity of the dismissal of its unfair labor
practice charges. As indicated above, it complains
that it was repeatedly denied the opportunity in the
proceeding before the Administrative Law Judge to
introduce evidence relating to those charges and that
this was error. But, the disposition of unfair labor
practice charges and the issuance of complaints are
matters vested by Section 3(d) of the Act within the
exclusive province of the General Counsel and the
Board may not review or reexamine the administra-
tive determinations made by him in this area.' This,
I Local 182, international Brotherhood of Teamster., Chauffeurs Ware-
housemen and Helpers of America (Woodward Motors), 135 NLRB 851, enfd.
314 F.2d 53 (C.A. 2). See also Times Square Stores Corporation, 79 NLRB
361.
in essence , is what Respondent asks that we do.
However, inasmuch as we have no alternative in
the circumstances of this case but to respect the
regularity of the General Counsel's actions in
dismissing Respondent's unfair labor practice
charges and in directing and conducting the expedit-
ed election, we hold that such election which
Respondent lost was a valid one under the Act. It
follows that Respondent's picketing to force recogni-
tion or bargaining within 12 months following that
election violated Section 8(b)(7XB) of the Act, as
found by the Administrative Law Judge.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Service Employees'
International Union, Local 227, AFL-CIO, its
officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
MEMBER FANNING, dissenting:
The Administrative Law Judge found that Respon-
dent violated Section 8(b)(7)(B) of the Act since he
concluded that Respondent had picketed the Em-
ployer within 12 months of a valid election with the
objective of forcing the Employer to recognize and
bargain with it. In so finding, the Administrative
Law Judge refused to allow Respondent to contest
the validity of the election in the instant proceeding
since he found that because Respondent had not
filed an appeal to the direction of the expedited
election or objections to its conduct, Respondent had
relinquished any right to contest the validity of the
election here.
My colleagues, while not passing on this conclusion
of the Administrative Law Judge, still find a
violation since they conclude that (1) Respondent's
effort to contest the validity of the expedited election
is, in effect, an attack on the validity of the dismissal
of the unfair labor practice charges it earlier filed and
that (2) the Board is precluded by Section 3(d) of the
Act from pursuing such an inquiry.
I must respectfully dissent. It appears clear to me
that Respondent should be given the opportunity at
the present time to contest the validity of the
expedited election upon which the 8(b)(7)(B) com-
plaint issued and, unlike my colleagues, I do not
think such action intrudes upon the exclusive powers
and prerogatives entrusted to the General Counsel
under Section 3(d) of the Act. Therefore, I would
remand the instant proceeding to the Administrative
2 In our view of the case, we need not consider what significance
attaches to the fact that Respondent failed to contest the direction of the
expedited election in the representation proceeding.
211 NLRB No. 120
SERVICE EMPLOYEES INTL UNION 983
Law Judge to take evidence on the validity of the
election.
It is, of course, axiomatic that a finding of a
violation under Section 8(b)(7)(B) is premised upon
there having been a valid election. If the Regional
Director erred in directing an election, or if the
election as held was invalid for other reasons, the
picketing here could not have violated Section
8(b)(7)(B). Thus the validity of the election which
triggered the 8(b)(7)(B) charge is a central element in
this 8(b)(7)(B) proceeding.3 However, the Adminis-
trative Law Judge considered himself constrained
from taking evidence on,the validity of the election
in the instant proceeding because Respondent had
not earlier objected to the election in the RM
proceeding. Such an approach fails to take into
consideration, however, the Board's rules relating to
the types of appeals which are to be taken to the
direction of a nonexpedited election as opposed to an
expedited election as was held here.
While Section 102.80(c) of the Board's Rules and
Regulations states in pertinent part that where an
expedited election has been directed "any party
aggrieved may file a request with the Board for
special permission to appeal from such determina-
tion" (emphasis supplied), Section 102.67(f), which
deals with nonexpedited elections, states that an
aggrieved party "shall" file a request for review or be
precluded from litigating in a subsequent unfair
labor practice proceeding any issue which could have
been raised in the representation proceeding. Section
102.80(c), however, makes no reference to the
consequences of a failure to seek appeal from the
direction of an expedited election. Indeed, even had
Respondent sought leave to appeal from the direc-
tion of the expedited election and had that appeal
been rejected, such would not have been a ruling on
the merits and would not have precluded Respon-
dent's raising the issue of the election's validity here.4
I therefore think it clear that Respondent was not
precluded from contesting the validity of the expedit-
ed election in this unfair labor practice proceeding.
Further, I do not think our inquiry into the validity
of the election here is in derogation of the General
Counsel's powers under Section 3(d) to investigate
charges and issue complaints. Our inquiry could not,
of course, cause the General Counsel to reconsider
any decision he may have made on the disposition of
any charges that may have been filed, but it would
enable us to determine whether the election was
valid, the issue squarely before us now. As Judge
Friendly wrote, "an election in which a union has in
fact been strong-armed by tactics violating Section
8(a) would hardly be `valid' under Section
8(b)(7)(B)-even in the unlikely event that the
General Counsel had refused to issue a complaint,
and even though the Board could not make him issue
one ...."5 While the court there ultimately held
against the union involved, it also noted that the
union there neither proved nor offered to prove that
the General Counsel was incorrect in his determina-
tions . Here, however, Respondent did offer to prove
this but was precluded from doing so by the
Administrative Law Judge .6
Respondent is claiming here that the election is
invalid because it did in fact give the appropriate
8(d) notice and because of the Charging Party's
8(a)(1), (3), and (5) violations. These two issues which
specifically reflect on the election's validity have not
been considered on their merits by us as yet. If either
of Respondent's claims is meritorious, such would
reflect adversely on the validity of the election and
hence on the violation the majority now finds. Such
issues must be considered by us before we can find a
violation here and I would therefore remand for
further proceedings as I have noted above.
3 See San Francisco Local Joint Executive Board of Culinary Workers
(APB Enterprises, Inc., d/b/a Perry 's), 207 NLRB No. 38 (1973); Provision
Salesmen and Distributors Union, Local 627, (Ershowsky Provision Co., Inc.),
163 NLRB 582 ( 1967); Department & Specialty Store Employees ' Union,
Local 1265 (Oakland G. R Kinney Company, Inc.), 136 NLRB 335 (1962).
4 Local 86, Brotherhood of Painters, Decorators and Paper Hangers of
America, AFL-CIO (Carpet Control Inc.), 209 NLRB No. 142 ( 1974); Retail
Clerks International Association Local 57, AFL-CIO (Hested Stores
Company), 138 NLRB 498 (1962).
5 N.L.R.B. v. Local 182, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Woodward Motors, Inc.), 314
F.2d 53 at 60 (C.A. 2, 1963), enfg. 135 NLRB 851 (1962).
8 This is, I believe, the true distinction between Woodward Motors and
the instant case.
DECISION
STATEMENT OF THE CASE
PAUL E. WELL, Administrative Law Judge: On April 3,
1973, Children's Rehabilitation Center, Inc., hereinafter
called the Charging Party, filed with the Regional Director
for Region 6 of the National Labor Relations Board,
hereinafter called the Board , a charge alleging that Service
Employees' International Union, Local No. 227, AFL-CI-
O, hereinafter called Respondent, engaged in picketing of
the Charging Party's premises in Butler , Pennsylvania, in
violation of Section 8(b)(7)(B) of the Act. On April 13,
1973, the Acting Regional Director on behalf of the
General Counsel of the Board issued a complaint and
notice of hearing. In its duly filed answer the Respondent
admitted various allegations of the complaint and.denied
others and denied the commission of any unfair labor
practices. On the issues thus drawn, the matter came on for
hearing before me at Pittsburgh, Pennsylvania, on Septem-
ber 11, 1973. All parties were present and represented by
counsel; all parties had an opportunity to call witnesses
and to adduce relevant and material evidence. At the close
of the hearing, all parties waived oral argument. Thereafter
the General Counsel and Respondent filed briefs. On the
entire record in this case and in consideration of the briefs,
I make the following:
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE CHARGING PARTY
The Charging Party is a Pennsylvania corporation
operating a nursing facility at Butler, Pennsylvania . During
the past year, the Charging Party had gross revenue in
excess of $ 100,000 and received goods, materials, and
supplies valued in excess of $50,000 from points directly
outside the Commonwealth of Pennsylvania , for use at its
Pennsylvania facility. The Charging Party is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
U. THE RESPONDENT LABOR ORGANIZATION
The Respondent is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On March 24, 1971, Respondent was certified as a
representative of certain employees of the Charging Party
at its Butler , Pennsylvania, facility, and, on August 2, 1971,
entered into a collective -bargaining agreement which was
to be effective for a 3-year period ending August 1, 1974.
The agreement contained a wage reopener clause which
provided for the renegotiation of wages each year on the
anniversary date of the agreement . The Union reopened
for negotiations in 1972 and on October 11, 1972, filed a
charge with the Board (Case 6-CA-6356) alleging that the
Charging Party was not bargaining in good faith. The
charge was dismissed on November 29, 1972.
On December 4, Respondent began picketing at the
Charging Party's entrance. This picketing continued
without hiatus until April 6, 1973. On December 15, the
Employer withdrew its recognition of Respondent and 3
days later filed a charge alleging a violation of Section
8(bx7)(C) (Case 6-CP-226). In addition the Charging
Party filed an RM petition covering the certified unit (Case
6-RM-484). On December 21, Respondent filed a charge
alleging 8(axl), (3), and (5) violations which was dismissed
on February 6, 1973, appealed to the General Counsel and
sustained . On March 14, 1973, the Acting Regional
Director directed an expedited election in Case 6-RM-484
and 5 days later approved the Charging Party's request to
withdraw Case 6-CP-226.
An election was conducted on March 20, 1973, and the
employees rejected Respondent as their collective -bargain-
ing representative . No striking employee attempted to vote.
Neither a request for special permission to appeal the
Acting Regional Director's direction of the expedited
election nor objections to the election were filed by
Respondent in Case 6-RM-484.
On April 2, 1973, the Acting Regional Director for
Region 6 issued the certification of the results of the
election and the following day the charge in the instant
case was filed by the Employer alleging a violation of
Section 8(bX7)(B).
Respondent at the hearing herein attempted to litigate
whether the 8(a)(5) charge (Case 6-CA-6356) had merit
and whether the 8(axl), (3), and (5) charge (Case
6-CA-6477) was properly dismissed . I held this evidence
immaterial on the grounds that the issues were not before
me, a ruling which I now reiterate.
B. Discussion and Conclusions
PI
e statute provides that a union violates the Act when it
.ets an employer with the object of forcing the
employer to recognize or bargain with the Union as a
representative of his employees when, within the preceding
12 months, a valid election under Section 9 (c) of the Act
has been conducted . Here the Union admits that it
picketed the Charging Party, and Union President James
Lindsay testified that an objective of its picketing was to
force the Charging Party to recognize and bargain with
Respondent as the representative of its employees.
Respondent contends however that the election which
was conducted on March 20 , 1973, was not a valid election
within the meaning of Section 8(bX7)(B ). This contention
is based on Respondent's argument that the 8 (a)(5) charge
had merit as did the 8(axl) and (3) charge, the picketing
called into question by the earlier 8(b)(7) charge was in fact
lawful and an expedited election could not properly be
held. While these are interesting contentions, I cannot
reach them within the framework of this case . A violation
is made out by the General Counsel herein if the election
which was conducted on March 20 was valid . The Act sets
forth certain prerequisites to support a contention that an
election is invalid . These include the requirement that the
objecting party file its objections with the Board to raise
the issue . Respondent stipulated that it objected neither to
the order of the Acting Regional Director directing the
expedited election nor to the conduct of the election after it
took place . As the court said in the Delsea Iron Works, Inc.,
case,' "[u]nder these circumstances [the absence of an
appeal of the direction of the election and the absence of
objections ], the Company must be deemed to have
relinquished any right it might have had to object to the
Regional Director's directing of a special election and the
conducting of the proceeding under the expedited proce-
dure." Of course , in the instant case , it is the Union not the
Company that is complaining, too late, that the election is
invalid . The Act provides no different ground rules for the
Union than for the Company and the rule as stated by the
court is equally applicable herein.
Having found that all of the elements of the violation of
Section 8(bX7)(B) have been admitted by Respondent or
shown by the General Counsel to exist, it follows that
Respondent has violated Section 8 (b)(7)(B) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of the
Charging Party described 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
I N.LR.B. v. Delsea Iron Works, Inc., 334 F.2d 67 (C.A. 3, 1964).
SERVICE EMPLOYEES INTL UNION
labor disputes burdening and obstructing commerce and
the free flow thereof.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Charging Party herein is an employer engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondent Service Employees' International Un-
ion, Local No. 227, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Respondent, by picketing the Charging Party with
the object of forcing it to recognize or bargain with the
Respondent as the representative of certain employees
where, within the preceding 12 months, a valid election
under Section 9(c) of the Act had been conducted, has
violated Section 8(b)(7)(B) of the Act.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in an
unfair labor practice, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this case, I
hereby issue the following recommended:
ORDER2
Respondent, Service Employees' International Union,
Local No. 227, AFL-CIO, Buffalo, New York, its officers,
agents, and representatives, shall:
1. Cease and desist from picketing, causing to be
picketed, or threatening to picket Children's Rehabilitation
Center, Inc., where an object thereof is to force or require
Children's Rehabilitation Center, Inc., to recognize or
bargain with Respondent as the representative of its
employees when, within the preceding 12 months, a valid
election under Section 9(c) of the Act has been conducted
which Respondent did not win.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Post at its business office and meeting hall, copies of
the attached notice marked "Appendix." 3 Copies of said
notice, on forms provided by the Regional Director for
Region 6 , after being duly signed by official representatives
of Respondent, shall be posted by Respondent immediate-
ly upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to its members are customarily
posted. Reasonable steps shall be taken by the Respondent
985
to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Mail to the Regional Director for Region 6 signed
copies of the aforementioned notice for posting by
Children's Rehabilitation Center, Inc., if it be willing, in
places where notices to its employees are customarily
posted. Copies of said notice to be furnished by the
Regional Director for Region 6 shall, after being signed by
Respondent as indicated, be forwarded to the Regional
Director for disposition by him.
(c) Notify the Regional Director for Region 6, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order , and all objections thereto shall be
deemed waived for all purposes.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT picket, cause to be picketed, or
threaten to picket Children's Rehabilitation Center,
Inc., where an object thereof is to force or require said
Company to recognize or bargain with us as the
representative of its employees where, within the
preceding 12 months, a valid election under Section
9(c) of the Act has been conducted, which we did not
win.
SERVICE EMPLOYEES'
INTERNATIONAL UNION,
LOCAL No. 227, AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.,
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1536
Federal Building, 1000 Liberty Avenue, Pittsburgh, Penn-
sylvania 15222, Telephone 412-644-2977.