Local 814

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 1130 (N.L.R.B. 1986)

1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 814, affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (Beth Israel Medical
Center) and Edwin Guzman . Case 2-CB-9980
30 September 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 January 1986 Administrative Law Judge
Jesse Kleiman issued the attached decision. The
Respondent filed exceptions, a supporting brief,
and an answering brief, and the General Counsel
filed cross-exceptions and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions2 and to adopt the recommended Order
as modified and set forth in full below.3
ORDER
The National Labor Relations Board orders that
the Respondent, Local 814, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, War-
ehousemen and Helpers of America, Long Island
City, New York, its officers, agents, and represent-
atives, shall
1. Cease and desist from
(a) Restraining or coercing any employee in the
exercise of rights guaranteed by Section 7 of the
Act by failing or refusing to fairly represent any
employee represented by it or arbitrarily failing or
refusing to file and process any employee's griev-
ance on a fair basis.
(b) Refusing or threatening to refuse to process a
grievance of any employee because he filed unfair
labor practice charges with or sought assistance
from the Board.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 No party has raised the issue discussed in fn 102 of the judge's deci-
sion or excepted to the imposition on the Respondent, a "mixed guard
union," of a duty of fair representation to a guards unit
S We have modified the judge's recommended Order to conform to
our recent decisions in Service Employees Local 3036 (Linden Maintenance
Corp), 280 NLRB 995 (1986), and Rubber Workers Local 250 (Mack-
Wayne Closures), 279 NLRB 1074 (1986)
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Request Beth Israel Medical Center to rein-
state Edwin Guzman to his former position of em-
ployment or, if it no longer exists, to a substantially
equivalent position and, if it refuses to do so,
promptly pursue the remaining stages of the griev-
ance procedure, including arbitration, in good faith
with all due diligence.
(b) Permit Edwin Guzman to be represented by
his own counsel at the remaining stages of the
grievance procedure and at the arbitration proceed-
ing, and pay the reasonable legal fees of such coun-
sel.
(c) In the event that it is not possible to pursue
the remaining stages of the grievance procedure,
resulting in the inability to resolve the grievance of
Edwin Guzman on the merits, make Guzman
whole for any loss of pay he may have suffered as
a result of its unlawful conduct in processing his
grievance in an arbitrary or perfunctory manner,
by payment to him of the amount he would nor-
mally have earned from the date of his discharge
until he is reinstated by the Employer or obtains
substantially equivalent employment, less his net
earnings during the backpay period, together with
interest as shown in the section entitled "The
Remedy."
(d) Post at its business office and all other places
where notices to its members are customarily
posted copies of the attached notice marked "Ap-
pendix."4 Copies of the notice, on forms provided
by the Regional Director for Region 2, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
' If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
281 NLRB No. 153
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL)
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT fail or refuse to fairly represent
any employee represented by us and WE WILL NOT
arbitrarily or perfunctorily process any employee's
grievance.
WE WILL NOT refuse or threaten to refuse to
process a grievance of any employee because he
filed unfair labor practice charges with or sought
assistance from the Board.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL request the Employer, Beth Israel
Medical Center, to reinstate Edwin Guzman to his
former position of employment or, if it no longer
exists, to a substantially equivalent position. If the
Employer refuses to do so , WE WILL promptly
pursue the remaining stages of the grievance proce-
dure, including arbitration , in good faith with all
due diligence.
WE WILL permit Edwin Guzman to be repre-
sented by his own counsel at the remaining stages
of the grievance procedure and at the arbitration
proceeding , and WE WILL pay the reasonable legal
fees of such counsel.
In the event that it is not possible to pursue the
remaining stages of the grievance procedure, WE
WILL make Edwin Guzman whole , with interest,
for any loss of pay he may have suffered as a result
of our unlawful conduct in processing his griev-
ance.
LOCAL 814, AFFILIATED WITH INTER-
NATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUFFEURS, WAREHOUSE-
MEN AND HELPERS OF AMERICA
Dana Devon and David Pollack, Esqs., for the General
Counsel.
Richard M. Seltzer, Esq. (Cohen, Weiss & Simon , Esq&),
of New York , New York, for the Respondent.
Steven M. Coren, Esq., of New York, New York, for the
Charging Party.
DECISION
1131
STATEMENT OF THE CASE
JESSE KLEIMAN, Adminstrative Law Judge. On a
charge filed on 23 June 1983 by Edwin Guzman , an indi-
vidual (by name or as the Charging Party ), the General
Counsel of the National Labor Relations Board issued a
complaint and notice of hearing on 23 August 1983,
against Local 814, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America (the Respondent or the Union), al-
leging that the Respondent had engaged in certain unfair
labor practices in violation of Section 8(b)(1)(A) of the
National Labor Relations Act (the Act). On 2 September
1983 the Respondent duly filed an answer denying the
material allegations in the complaint.
A hearing was held before me in New York, New
York, on 16 and 17 January 1984 . At the commencement
of the hearing the Respondent moved for an adjourn-
ment "on the basis that this case has been submitted to
arbitration, and that arbitration is pending , and we be-
lieve that the processes of the Board would be best
served by this hearing not taking place until a decision
has been reached on that arbitration ." The General
Counsel opposed the motion for an adjournment on the
grounds that
[T]he union submitted a request for arbitration ap-
proximately 8 months after the charging party in
this matter was discharged.
General Counsel told the union at that time that
they would defer the proceedings on this matter if
the union could secure an agreement from the em-
ployer that the employer would not assert a time
bar to go to arbitration in the case.
The union never was able to obtain that agree-
ment of the employer, and the regional director felt
it was best to proceed with the issue of the com-
plaint.
Moreover, in principles established in [bubo] or
[Collyer] , the Board would not generally defer its
proceedings if the interests of the union and the in-
dividual are not in synch , as they are ''not here.
There is no assurance that this individual will get a
fair shake, if this case is in fact held before an arbi-
trator.
And under Spielberg, if the unfair labor practice
alleged in our complaint is never presented or adju-
dicated before an arbitrator, we do not defer to its
decision.
So for those reasons, we do not think it is judicial
for these proceedings to be stayed pending an arbi-
tration that most likely will never occur. . . . Be-
cause the Union will probably be time barred from
being heard.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Charging Party also opposed the motion for an ad-
journment. I denied the Respondent's motion for an ad-
journment. I
All parties were afforded full opportunity to appear, to
introduce evidence , to examine and cross-examine wit-
nesses, to argue orally on the record, and to file briefs.
At the close of the General Counsel's case the Respond-
ent moved to dismiss the complaint for failure of proof. I
denied the motion. At the close of the hearing the Re-
spondent renewed its motion to dismiss. I reserved deci-
sion on this motion. The General Counsel and the Re-
spondent thereafter filed briefs.
Moreover, by letter dated 25 June 1984, the Respond-
ent renewed its "motion to the Administrative Law
Judge for deferral of this case pending arbitration" for
the reason that
An arbitration hearing on the question of arbitra-
bility of the case involving Mr. Guzman's discharge
has been scheduled before the new Impartial Chair-
man, Professor Daniel P. Collins, on July 23, 1984.
A hearing on the merits is tentatively scheduled for
August 1, 1984. Professor Collins has already issued
an opinion and clarifying letter in a different matter,
Harold Rhames, the first arbitral decision under the
Local 814/Beth Israel contract concerning arbitra-
bility. This opinion now makes clear that the posi-
tion of Local 814 before the arbitrator on the arbi-
trability of the Guzman case will have a substantial
basis . In light of these factors, and the Board's
recent direction concerning the deferral of cases
pending arbitration (United Technologies Corp., 268
NLRB 557 (1984)), Respondent renews its request
and motion that consideration of this case be de-
ferred pending arbitration.
For the reasons appearing hereinafter I deny the Re-
spondent 's motion for deferral of this case pending arbi-
tration. Additionally, I deny the Respondent's motion to
dismiss the complaint in its entirety for failure of proof.
On the entire record and the briefs of the parties, and
on my observation of the witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Beth Israel Medical Center (the Employer or the Hos-
pital) is a not-for-profit corporation with an office and
place of business in New York, New York (Beth Israel
Hospital), and is engaged as a health care institution in
the operation of a hospital and medical clinic providing
in-patient and out-patient medical and professional care
services to the public. In the course and conduct of the
Employer's business operations during the preceding 12
months, these operations being representative of its oper-
ations at all times material , the Employer derived gross
revenues in excess of $250,000 and purchases and re-
ceives at its New York, New York facility, goods and
materials valued in excess of $10,000 directly from firms
' The parties herein stipulated that Region 2 received notice sometime
in August 1983, that the Union had filed a request for arbitration of the
Guzman discharge
located outside the State of New York. The complaint
alleges, the Respondent admits ,2 and I find that the Em-
ployer is now, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act, and a health care insti-
tution within the meaning of Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the Respondent admits, and I
find that Local 814, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America is now, and has been at all times ma-
terial , a labor organization within the meaning of Section
2(5) of the Act. The complaint also alleges, the Respond-
ent admits, and I find that at all times material, by virtue
of Section 9(a) of the Act, the Respondent has been and
is now , the exclusive bargaining representative for the
purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, of all employees of the Em-
ployer in a unit appropriate for the purposes of collective
bargaining composed of, "All security guards employed
by the Employer at its New York, New York facility,"
excluding supervisors within the meaning of Section
2(11) of the Act.3 Additionally, the complaint alleges,
the Respondent admits , and I find that at all times mate-
rial, the Respondent and the Employer have maintained
and enforced a collective-bargaining agreement covering
wages , hours, and other terms and conditions of employ-
ment of the employees of the Employer in the unit de-
scribed above, and containing therein , a grievance and
arbitration procedure. This agreement covers the period
"March 15, 1982 through March 14, 1984."
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that since about 30 December
1982 and continuing thereafter , the Respondent has failed
and refused to process a grievance concerning the dis-
charge of Edwin Guzman filed pursuant to the provi-
sions of the collective-bargaining agreement, thereby fail-
ing to represent Guzman for reasons which are unfair,
arbitrary, invidious , and a breach of the fiduciary duty
owed to the employees whom it represents; and that
since about 27 May 1983 and continuing to date , the Re-
spondent has failed and refused to process the grievance
of Guzman because he sought assistance from the Na-
tional Labor Relations Board , and by the above acts and
conduct the Respondent has restrained and coerced, and
is restraining and coercing its employees in the exercise
of the rights guaranteed them in Section 7 of the Act,
and the Respondent has thereby been engaging in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act. The Respondent denies these allegations.
2 At the hearing the Respondent amended its answer to admit the
"commerce" and "health care institution " allegations in the complaint.
s There are approximately 65 to 70 employees in the bargaining unit
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1133
A. The Evidence
1. Background
Edwin Guzman was employed by Beth Israel Medical
Center from 27 June 1980 until 30 December 1982 as a
security guard on the midnight to 8 a .m. shift . Guzman
was a member of the Union since 1981 in the unit of
guards represented by Local 814 under the collective-
bargaining agreement between the Hospital and the
Union . In November 1982 Guzman received a 1-day sus-
pension for failing to call in to report that he would be
absent, since he had received prior warnings in the past
for being absent without leave .4 Guzman testified that he
had contested this suspension by refusing to sign the
"Disciplinary Warning Notice & Action Taken ." s Clif-
ford Trowers , the Union's shop steward who was
present at the disciplinary meeting which resulted in
Guzman 's suspension , testified that Guzman made no re-
quest that the Union take his suspension to grievance and
arbitration under the provisions of the bargaining agree-
ment.
2. The discharge of Edwin Guzman
On 30 December 1982 at approximately 9:30 or 10 that
morning , Edwin Guzman was called into the office of
James O'Leary, assistant director of security at Beth
Israel Medical Center, where he was informed by
O'Leary and Donald Fogerty, the director of security,
that he was being discharged . 6 Also present was Dennis
Boyle,' an assistant to Union Shop Steward Clifford
Trowers, who was unable to attend the meeting because
he was on vacation at the time . The reason given for
Guzman 's termination was that he had failed to report
for work on his scheduled midnight tour of duty on
Wednesday, 29 December 1982 and had failed to notify
the Hospital , prior thereto and as required, that he would
be absent. Guzman protested his discharge claiming that
he had in fact called the Hospital on Tuesday evening,
28 December 1982, and reported his projected absence,
using a neighbor's telephone since he had no phone in
his own apartment . Guzman told Fogerty and O'Leary
that someone at the Hospital, whom he could not identi-
fy at the time, had answered his call saying , "Beth Israel
Hospital Security ," and that after Guzman had informed
this individual that he was going to be absent for his next
tour of duty, he responded, "I got it." Guzman also told
them that he had heard a lot of noise in the background
at the other end of the line, including a telephone ring-
ing.
Guzman testified that Fogerty and O'Leary refused to
believe his story because there was no record of his call
in the logbook kept in the hospital security office for
such purposes . They also reminded Guzman that he had
previously been suspended for 1 day in November 1982
for a similar offense and stated that Guzman's discharge
would stand unless he could show proof that he had
called in to report his absence . Guzman stated that both
he and Boyle told Fogerty and O'Leary that at times the
security desk is a very busy place and perhaps the party
who had received Guzman 's phone call had forgotten to
write it down or record it properly in the logbook.
Guzman also mentioned that he had contested the prior
disciplinary action as unfair . Guzman continued that he
refused to sign the termination notice presented by Fo-
gerty and O'Leary, in order to challenge his undeserved
discharge and that, while Boyle did sign the notice on
behalf of the Union, Boyle also verbally contested Guz-
man's termination telling Fogerty that, "the Union would
fight him on this case ."s Guzman added that he also pro-
tested the fairness of this disciplinary meeting since no
witnesses or other evidence was produced , and because
he "didn 't have a strong union representative there."9
The meeting was then concluded.
Soon after Guzman and Boyle left O'Leary's office,
Boyle asked Guzman for a telephone number where he
could be reached and told Guzman that he was going to
contact Trowers who would then call Guzman concern-
ing this matter . Boyle explained that they had to proceed
through "proper channels" and get a hearing before the
"proper people." When Guzman pointed out that they
had not even seen the logbook, Boyle told him, "don't
worry, sometimes they make mistakes with names too,
because your name is Guzman , and they have a Good-
man there," Goodman being another security employee
at the Hospital . Guzman related that during this conver-
sation , Fogerty appeared and instructed Guzman to
gather his belongings from his locker, turn in his uni-
form, badge, and identification documents, and leave the
Hospital . According to Guzman , Fogerty also told him
that if he was thereafter found on Hospital premises, he
would be arrested for trespassing.
Guzman testified that about 3:45 in the afternoon of
that day, he "bumped" into another security employee,
Roger Copeland , who remarked that he had heard that
Guzman had , "got yourself into some kind of a prob-
lem." 10 Guzman related what had happened, telling Co-
peland that he had called in on 28 December 1982 to
report his absence and the person on duty "forgot to put
me down ." Guzman stated that Copeland then acknowl-
4 The warning notice, dated 16 November 1982 states , "You have been
warned in the past, most recently on 5-29-82 about being absent without
leave. You are therefore being suspended for one day and warned that
any further abuse of the attendance policy will result in your termina-
tion."
° See R. Exh. 1-B.
6 What transpired at this meeting is based solely on Guzman's account
thereof since none of the other participants therein testified at the hear-
ing.
4 Boyle had been promoted to a supervisory position at Beth Israel
Medical Center at the time of the hearing and was no longer in the bar-
gaining unit.
° Guzman testified that it was his understanding that by refusing to
sign the notice of termination , he was in effect contesting his discharge
Trowers testified that while he had instructed "the guys not to sign any-
thing at all ," his own signature on the disciplinary notice had no real sig-
nificance as far as he was concerned.
° Trowers usually represented unit employees , on behalf of the Union,
at these disciplinary meetings and, as appears from the evidence herein,
was substantially more knowledgeable about disciplinary proceedings and
procedure at the Hospital than was Boyle.
10 Copeland worked the 4 p.m to midnight shift and had arrived at
the Hospital to begin his tour of duty.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edged that he was the security guard on duty that
evening and told Guzman:
I received a call from a Guzman or Goodman, and
I didn't know [who] it was, there was an emergen-
cy, some type of gas leak, the sergeant had to re-
spond to it, I had to leave the office alone, the
phone was ringing , and I had jotted it down on a
scrap; I probably forgot to give it to the sergeant to
write it down, or I put it down in the book as either
Guzman or Goodman.
Guzman continued that Copeland then offered to go im-
mediately to Fogerty and O'Leary and "testify to the
fact," but as Guzman added:
I explained to [Copeland] that Boyle stated that we
needed a meeting with the proper authorities to
show this evidence that we have now, and that the
shop steward was going to be notified, and to wait
until we got the shop steward to do the investiga-
tion. I I
Guzman recounted that while waiting for Shop Stew-
ard Trowers to return from his vacation, he called the
Hospital on 3 January 1983 and spoke to Goodman.
Goodman confirmed that he had worked the midnight
shift on 29 December 1982 and had therefore not previ-
ously called in on the evening of 28 December 1982 to
report any absence. Guzman then contacted Sergeant Ba-
vidas who checked the "daily order chart" and told
Guzman that Goodman had in fact worked on 29 De-
cember. Guzman continued that on 5 January 1983 he
received a letter from the Hospital confirming his termi-
nation, whereupon he called the Hospital in order to ap-
prise Trowers of this.12 Guzman related that although
he was told that Trowers was back at work, Trowers
was unavailable to answer the telephone, but would be
11 Copeland could not recall when Guzman first told him of his dis-
charge He stated , "I don 't remember , period Some times I don 't remem-
ber my birthday " However, Copeland was sure that it had not occurred
the same day as Guzman 's termination (30 December 1982) Moreover,
Copeland's testimony concerning when he first told Guzman about re-
ceiving a telephone call on 28 December 1982 from Guzman or Good-
man was somewhat confusing He testified that the first time he had a
chance to talk to Guzman about this took place "at least a week or two"
after he first spoke to Guzman Additionally, while he testified that at the
time Guzman first told him about being terminated , he had told Guzman
that , "I can 't stop and talk to you now, I 'm running late " Copeland also
testified, "Then I seen him later on, I don't know how many days it was,
he came back again, I was on post and he was telling me, you were on
post I said yes , I was on post and I told him what happened then, the
same thing I repeated before " This would imply that Copeland had at
least mentioned his involvement in the incident during their first conver-
sation Be that as it may concerning Copeland's confused testimony re-
garding dates, he consistently and credibly testified that he had received
a telephone call on 28 December 1982, from someone who identified
himself as either Guzman or Goodman , reporting his absence for his next
scheduled tour of duty, and that Copeland had failed to record this mes-
sage in a logbook, kept for such purpose at the security duty desk, be-
cause of an emergency problem which was in occurrence coincidentally
at the same time he received this call
12 This letter , dated 4 January 1983 from Jesse Drucker, director of
employee relations , is addressed to "Charles Agar, Vice-President, Local
814 I B T," and shows thereon that a copy of the letter was also sent to
Guzman and Trowers A date stamp on the letter (R Exh 3A) indicates
that the Union received this document on 12 January 1983
given the message that Guzman had called. Trowers
failed to return Guzman's phone call.
3. Guzman contacts the Union
Guzman testified that since Trowers had failed to con-
tact him, he went to the union office on 6 January
198313 and spoke to Charles Agar, the Union's vice
president. Guzman explained to Agar the circumstances
surrounding his discharge, related the substance of his
conversations with Copeland and Goodman, and told
Agar that he was waiting for Trowers to contact him be-
cause Boyle had advised him that he would "have to
wait to go through the chain of command." Agar ac-
knowledged that he had received a letter from the Hos-
pital regarding Guzman's discharge and instructed
Guzman to contact Trowers. Agar also told Guzman
that after Trowers had completed his investigation and
gave Agar "what he needs," the Union would "go for-
ward with it." After concluding their conversation,
Guzman checked with "the girl at the door about his
dues and whether he could pay them the next week."14
Guzman continued that he left the union office and
went to Beth Israel Medical Center where he "bumped"
into Boyle who told him that he had given Trowers
Guzman's telephone number and had asked him to call
Guzman, and that Trowers was present on the premises
at the time. Guzman then sought out Trowers where-
upon Trowers "apologized" for not having contacted
Guzman sooner. Trowers told Guzman that Boyle had
"explained the situation, said that he contested it, wanted
to fight on this, because he believed in my innocence,"
and advised Guzman that he would conduct an investi-
gation "in detail" which would take a little time, and
then Trowers would contact Guzman "later." Guzman
stated that during this conversation he told Trowers that
Copeland was on duty on the evening he had called in to
report his absence, and about what Copeland had said,
"but we didn't go into detail on it."
Guzman related that "after a couple of days," about 17
January 1983, he met again with Trowers and explained
in more detail what had occurred. Guzman told Trowers
that he should check the logbook on the theory that Co-
peland had entered Goodman's name instead of his own
therein, and Trowers said he would do so.15 A few days
i s In an affidavit given to the Board during the investigatory stage of
this proceeding in June 1983, Guzman stated that his initial meeting with
Agar took place "around the week January 17, 1983." Guzman explained
this discrepancy asserting that the Board agent who took his statement
had estimated that date from what Guzman had told him about the oc-
currence Guzman testified that after he had reviewed his notes on what
had transpired, he realized that the meeting had actually taken place on 6
January instead of 17 January 1983
i4 C P Exh. 1 is a Local 814 dues receipt for payment of Guzman's
dues to the Union on 13 January 1983
16 Guzman seemed confused as to when he actually told Trowers
about his "theory" that because Copeland had acknowledged receiving a
phone call from either Goodman or Guzman on 28 December 1982, and
because Goodman admittedly had not made the call having worked his
midnight shift on 29 December 1982, then it must have been Guzman
who called in to report his absence from that shift as Guzman had main-
tained all along Guzman, at various times in his testimony, stated that
this had occurred in January, February, and March 1983
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL)
later Trowers called Guzman and advised him that he
had reviewed the logbook and neither Goodman's name
nor Guzman 's appeared in the book . Guzman stated that
Trowers then said , "The evidence I have here seems to
be that you 're terminated , unless I have some other way
of finding out what you say is true." Guzman recounted
that, after becoming angry at Trowers, he called Agar at
the Union about 17 January 1983, to apprise him of what
had happened . Guzman told Agar that the fact his name
or Goodman 's did not appear in the logbook "doesn't
mean that I didn 't call in," and that "They still haven't
checked . All that's involved hasn 't shown up yet."
Guzman then asked Agar if he could engage in his own
investigation of the incident and Agar agreed and told
Guzman to bring the Union any "positive statement" to
support his "innocence" whereupon the Union would
"take it up to grievance and arbitration ." Guzman added
that this conversation with Agar occurred during the
"Last week in January , beginning of February" 1983.
Guzman testified that during the month of February
1983 he met with Agar on several occasions to discuss
his case and the sufficiency of proof he was offering to
the Union.' s According to Guzman, however , Agar told
him that this proof was insufficient to support his conten-
tions in the case . Guzman stated that he also told Agar
in February 1983 that he was going to "the Labor Board
to find out how I could find some way to defend myself,
some idea ." Guzman continued that in March 1983 he
asked Copeland for a written statement but Copeland re-
fused , telling Guzman that he would rather testify at a
meeting with hospital and union officials present, with
the Union showing its support of Guzman as a union
member by such action . Guzman added that he also
spoke to Trowers that same day and expressed his frus-
trations about the lack of progress in his case.
16 Guzman testified that he had submitted a letter from Boyle to the
Union and that after Agar read it, he told Guzman that the letter was
..not sufficient enough ." While Guzman maintained that he had given this
letter to Agar in late February 1983, the letter from Boyle received in
evidence as G.C. Exh. 2E is dated 27 May 1983 . However, it should be
noted that Guzman also testified that the letter shown to Agar was
"poorly written ... wasn't written properly , it wasn 't notarized," and
that he had asked Boyle to rewrite it subsequently . Thus, it may well be
that the letter from Boyle dated 27 May 1983 in evidence is a second
revised one . Be that as it may, Boyle's letter , addresed to "James"
Bracco, the Union 's president, and Agar, states : that Boyle verbally con-
tested Guzman 's discharge at the disciplinary meeting on 30 December
1982; that he questioned the adequacy afforded Guzman to prepare and
present proof in support of his allegations at the meeting ; next Boyle re-
lated what Guzman alleged had occurred on the evening of 28 December
1982, wherein Guzman telephoned the Hospital to report his absence, and
that Copeland had acknowledged being on duty that evening and receiv-
ing a phone call from either Guzman or Goodman ; then Boyle admitted
that at the time of the disciplinary meeting he was unaware that in order
to contest Guzman 's discharge he had to write "it on the back of his ter-
mination paper" and that this was "part of the grievance procedure"; and
Boyle requested that Guzman 's case "go into arbitration so that he can
collect for the time he has lost from work and that he be reinstated to his
job."
Guzman related that he also brought Agar "two papers . contra-
dicting themselves . One states that I was terminated , the other one states
that I resigned . [T]he hospital has me at the labor [Board ] terminat-
ed, and at the welfare office that I resigned ." Guzman recounted that
Agar again told him that he felt that this was insufficient proof to estab-
lish Guzman 's contentions. Guzman added that at the meeting wherein he
was discharged , Fogerty had at first asked for his resignation, but
Guzman had refused to resign
1135
4. The 12 April 1983 meeting
Guzman testified that sometime in March 1983 he
learned that Agar would be attending a meeting at the
Hospital with Fogerty and O'Leary concerning other
matters . Guzman contacted Agar who confirmed that
the meeting was to be held on 12 April 1983 , but that
they might not have time to discuss Guzman 's termina-
tion . Guzman told Agar that he "would take my
chances." On 12 April 1983 Guzman appeared at
O'Leary's office late in the afternoon and asked to be
heard regarding his discharge . Present were Fogerty,
O'Leary, Agar, Trowers, and Guzman . Trowers advised
Guzman that this meeting would be "unofficial ... just
to prove a point." Guzman was shown the logbook
which showed neither Goodman 's nor Guzman's name
entered on 28 December 1982. However , the logbook
did show that a gas leak had occurred that evening and
it was further established that Goodman had worked his
shift on 29 December 1982 . Copeland now came into the
meeting and testified that he had been at the security
desk post on 28 December 1982 during the gas leak
emergency. Copeland told them that he had received a
phone call that evening from either Guzman or Good-
man and that he had forgotten to record this in the log-
book because it was very busy at that time due to the
emergency problem .' 7 Guzman then maintained that he
had been unfairly discharged and Agar asserted that the
evidence shows that an injustice had been done to
Guzman . Fogerty declined to give credence to the posi-
tion of the Union and Guzman , because the evidence
presented "doesn't have any solid basis ," and when Agar
and Guzman demanded Guzman 's job back, Fogerty re-
fused stating, "[N]o, he doesn 't work here anymore."
Agar told Fogerty that the Union would take this matter
up with its legal counsel since this was an unofficial
meeting only.
Following the meeting, Guzman spoke to Trowers
while Agar was conversing separately with Fogerty. Ac-
cording to Guzman , Trowers told him that he was 100
percent behind Guzman , that Guzman had proven his in-
nocence, and that the matter would go to arbitration and
Guzman would get his job back . Agar now approached
Guzman and advised him there was a problem, a "slight
technicality," because the discharge had never been con-
i7 Copeland 's testimony concerning what he said at the 12 April 1983
meeting was similar to Guzman's account Copeland also testified that
"about a month " after he had told Guzman about having received a tele-
phone call from either Guzman or Goodman on the evening of 28 De-
cember 1982, Trowers for the first time questioned him about what had
occurred that evening . Copeland related that he told Trowers that he had
received a call from Guzman or Goodman that evening but was very
busy, and that if Goodman had not made the call, it must have been
Guzman who did so . Copeland added that he told this to Trowers on
several occasions during conversations between them from 30 December
1982 through 12 April 1983.
Trowers' testimony regarding what Copeland said at this meeting was
also similar to Guzman 's and Copeland's Trowers testified
He said it was a very busy night and he had a lot to do, an explosion
was going on and the phones were ringing, he was trying to get in
touch with the sergeant and he had to get in touch with engineering
and he thinks he got a call from either Guzman or Goodman. . .
[I]f Goodman came in to work then that means Guzman was the one
that probably called.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tested in writing and the Union might now be time-
barred from processing a grievance at this late date.
Guzman responded that he had previously told the
Union what had occurred and both he and Boyle had
contested the discharge on 30 December 1982 when first
notified of the termination, although only verbally. Agar
told Guzman that he would have to check this with the
Union's attorneys and would then get back to Guz-
man.18
Agar never contacted Guzman and when Guzman
called the Union sometime in April 1983 he was told that
Agar was not in. Guzman related that he also spoke to
Trowers in May 1983 telling Trowers that he was wait-
ing to hear from the Union about his case and he asked
Trowers if he would need statements from the employ-
ees involved in this matter.
5. The events of 25 May through 15 June 1983
On 25 May 1983 Guzman went to the Union's office
and met with Agar and Vincent J. Bracco, the Union's
president. Guzman testified that Agar mentioned "some-
thing about a 5-day rule" and they told him that
"[T]here's nothing we can do for you right now, money
is going to be wasted and time, it looks bad for you."
Agar brought up the fact that Guzman had some prior
"write-ups," and Guzman responded that those "write-
ups" had nothing to do with this current matter and that
he had "contested most of them" anyway. Guzman
stated that he reminded Agar that he had gone through
the "chain of command" as directed by the Union, and
that he had never received a copy of the Union's "regu-
lations." After Bracco directed Agar to give Guzman a
copy of the union contract with the Hospital, the "union
book," Bracco told Guzman that the Union, cannot
"take you up on it." Guzman recounted that he insisted
that he would pursue this matter further and asked
Bracco whether the Union would take his case to arbi-
tration if he secured written statements from Boyle, Co-
peland, and Trowers regarding the circumstances sur-
rounding his discharge and in support of his assertions.
According to Guzman, Agar and Bracco stated, "If you
can do that, we'll start our arbitration procedures for
you.,,
Guzman continued that following his conversation
with Agar and Bracco at the Union's office, and being
uncertain about how these statements should be drafted,
he went to the Board's Region 2 office where he spoke
to Field Attorney Deborah Glass. Guzman testified that
he told Glass what had transpired regarding his dis-
charge and his attempts to have the Union take the
matter to grievance and arbitration. i 9 Glass told
Guzman that she was going to call the Union to "verify"
his statement and asked him to leave the office while she
did so. Guzman stated that when he returned to Glass'
office she related what had been said between she and
Bracco during the conversation. Guzman related that
18 Trowers testified that this conversation ended with Agar telling
Guzman to call him subsequently to find out what the Union's attorneys
had advised Agar regarding the "five day " time limitation in this matter
i8 Guzman testified that he also told Glass, "I don 't have anything
against my union "
Glass told him that she had assured Bracco that Guzman
had not filed a charge against the Union, there was "no
case against him," and that her call was merely made for
informational purposes, she being the information officer
on duty at the time and made to "reassure" Guzman
who was there. Glass also told Guzman that Bracco had
said that the "four statements is all you need, and he'll
start arbitration procedures, and go by it slowly."
Glass testified similarly relating that Guzman had in
fact appeared at the Board's office and had told her that
he had been unjustly discharged by Beth Israel Medical
Center.20 Guzman had said that he had a problem at
home and had called the Hospital to report that he
would be absent from his next tour of duty, that there
had apparently been a mixup at the Hospital and the
message was not recorded, and that he had been dis-
charged for failing to report his projected absence, and
that he wanted to file a grievance because he had strong
evidence to support his claim. Glass stated that several
months had elapsed since his discharge and Guzman ap-
peared "very frustrated, confused and distraught" be-
cause he had asked the Union to proceed with his griev-
ance but they had told him that, "he had to do some sort
of further investigation before they would proceed to ar-
bitration with his grievance." Glass continued that she
asked Guzman if he had obtained the additional evidence
the Union requested and Guzman replied that he had
some but not all of it. Guzman told her that he had to
speak to some other employees and because she was
unsure as to just what else he had to do to comply with
the Union's request , she suggested that he take the
Union's advice, and talk to these employees and get this
evidence. Glass related that Guzman insisted that she call
the Union to find out what exactly he had to do before
they would proceed with his grievance because Guzman
was not convinced that obtaining the additional evidence
would be sufficient to get the Union to file such griev-
ance. Guzman also told Glass that he felt that the Union
had been "wasting a lot of time up to this point."
Glass testified that she called the Union and spoke to
Bracco, the Union's president, outside the presence of
Guzman, who had voluntarily left her office when she
placed the call. Glass related her conversation with
Bracco as follows:2 i
20 While Glass testified that she clearly remembered the details of
what occurred , she could not recall the date that Guzman came to the
Board's office
21 The Respondent 's counsel at the hearing and in his brief, objected
to Glass' testimony regarding what was said between her and Bracco
dung their telephone conversation on the grounds that
[T]he law firm of Cohen, Weiss and Simon, represents Local 814 for
a long period of time We have represented Local 814 in various dif-
ferent contexts before this region, and various other regions, and
there is no other counsel for that union And I think in this particu-
lar context, it was improper for an attorney for the Board to immedi-
ately call the client, instead of calling attorneys, who I think, the
region is well aware, represent that client And it may well be that
the attorney at the time did not think that her statements would be
used , but clearly we are here today, and the client was directly
called, and the outcome is that an attorney for the region is here tes-
tifying as a witness for the general counsel in this context And I
don't think this is a type of procedure that should be followed, and
Continued
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1137
I introduced myself to Mr. Bracco , told him that I
was an agent for the National Labor Relations
Board, told him that one of his _ members, Mr.
Guzman, had come in that day, and was seeking in-
formation about how to go about filing or proceed-
ing with a grievance he had against his former em-
ployer . Mr. Bracco indicated that he knew Mr.
Guzman, knew who he was, and asked me if he was
there.
I said no , he's not in the room right now, but he
would like to know what information he, needs to
proceed with his grievance.
Mr. Bracco said , oh well, if he's gone to the
labor board , forget it, you can just handle it, or
something like that.
And I said no, please understand that he does not
wish to file a- charge against the union, he just
wants some information as to how he can proceed
with his grievance.
He has explained to me that you had told him
that he needed to get further information. At the
time I specified to Mr . Bracco what the information
on that basis I'm going to object to any testimony concerning this
conversation.
The General Counsel, in support of allowing Glass to testify as regards
this conversation, stated:
It's common practice that when people come in off the street, when
you go to information with problems, that the information officer
will often try to effect a conciliation right then and there, rather
than take a charge. Ms. Glass testified, and Mr. Guzman testified
that he did not want to file a claim against the union. He just wanted
to get the union moving to process his grievance Under these cir-
cumstances, it is customary for the information officer to call the
union to check on the status of the case. Deborah Glass called, a
normal procedure that is employed by information officers when
they are on duty and they take a complaint off the street.
I overruled the Respondent's objection at the hearing with leave to the
Respondent's counsel to "show me that this testimony should have been
excluded." The Respondent's counsel in the brief merely renewed its ob-
jection to Glass' testimony without anything more.
After a charge has been filed and a complaint issued the NLRB Case-
handling Manual provides (sec 10056.5):
Where a respondent is represented by counsel or other representa-
tive .. the charged party's counsel or representative is to be con-
tacted and afforded an opportunity to be present during the inter-
view of any supervisor or agent whose statements or actions would
bind a respondent . . . This policy does not preclude the Board
agent from receiving information from . . the charged party where
the individual comes forward voluntarily, or where the individual
specifically indicates that he does not wish to have the charged
party's counsel or representative present.
However, it should be noted that the General Counsel's above guidelines
are specifically applicable to a commenced proceeding wherein a charge
has been filed and the charged party's counsel has made an appearance in
the matter In the instant case, when Board Agent Glass telephoned the
Union and spoke to Bracco, no charge had been filed as yet, no com-
plaint issued, and as far as Glass knew no filing of a charge was contem-
plated by Guzman who in fact had told her he was not there to file a
charge.
Moreover, even considering this issue in the light of fundamentals of
fair play and the policy,underlying the General Counsel's administrative
instructions, and according to Glass' testimony, which I credit for rea-
sons which will be hereinafter discussed, Bracco never requested Glass to
contact his attorney and, in any event, the Respondent has not even at-
tempted to show how the presence of counsel might possibly have al-
tered the content of Bracco's remarks in particular or the outcome of
these proceedings in general, Accordingly, I conclude that the Respond-
ent has failed to establish that this evidence should be excluded and I
therefore overrule its objections thereto. See Eastern Industries, 217
NLRB 712 (1975)
was, although now I can't tell you exactly what it
was.
I said, is Mr. Guzman's understanding correct?
If he secures this information for you, that you
can proceed with his grievance?
And Mr. Bracco said yes, that was true.
Glass stated that this concluded their conversation and
when Guzman returned to her office she told him that
she had spoken to Bracco and Guzman's "understanding
was correct about the information that he needed to
obtain, and that if he would obtain that information pur-
suant to the union's request, that the union was willing to
process his grievance."
Guzman testified that after he left the Labor Board, he
obtained "the statement" and took "them" to the Union
on 27 May 1983. Guzman related that he met Bracco in
the hallway and
I had the statement in my hand, I had a smile, I
said, here we go, let's get the ball rolling, let's get
this going.
He said, I'm not taking it. You have the labor
board to handle it. I said, what are you talking
about? He.said, we're'not taking no statement, that's
it, we're not going to take it.
I said, wait a minute, I argued with you, I apolo-
gize about the way I acted, this is what you
wanted. He said, the labor board, they're taking
care of it. I said, I know for a fact that she told you
that I was not making a complaint at all , so these
statements that you wanted are here now to take
me to arbitration.
Which he said, I'm not taking it, I'm not handling
it, let them take care of it.22
Guzman thereupon left the Union's office.
Guzman related that he then attempted to contact
Glass at the Board but she was out and therefore, a_day
or two later, he returned to the Hospital and spoke to
Trowers about the situation but, Trowers also refused to
accept "the statement." At the Hospital Guzman also
spoke to Boyle about "fixing up" Boyle's "sloppy" state-
ment. Guzman added that Boyle suggested that he send
copies of the statements to the Union which Guzman did
by registered mail on 9 June 1993.23 Guzman received
28 Guzman's testimony is confusing as to whether he had presented
one or more employee statements to Bracco. He made reference in his
testimony at times to "the statement," and at other times to "statements"
and "them." However, numerous typographical errors are present in the
record transcript. Thus, one explanation of this could be that the hearing
reporter may have omitted the "s" in some places where the word " state-
ment" appears at this point in the record.' Be that as' it may, the state-
ments from Copeland, Boyle, Trowers, and Guzman's own, are all dated
27 May 1983.
zs Copeland's letter/statement is consistent with his testimony herein
and what the evidence indicates he told Guzman and Trowers , on several
occasions, and Fogerty, O'Leary, and Agar at the 12 April 1983 meeting.
It states that he, Copeland, "on the evening of December 28, 1982, re-
ceived a phone call from a security guard calling in absent. I was very
preoccupied . . and did not have a chance to write the name in the log-
book . . . I did remember that the name might have been Guzman or
Goodman." As set forth herembefore,, Boyle's statement asserts that he
Continued
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no response from the Union with regard to these state-
ments.
Guzman testified that not having heard from the
Union, on 15 June 1983 he telephoned Agar at the union
office and asked him what the Union intended to do be-
cause he knew they had received the statements he sent.
Agar told him that, "[W]e're not taking you to arbitra-
tion." Guzman asked Agar for the reason the Union was
refusing to do so and Agar responded that, "[W]e're not
going to do it." Guzman stated that he asked Agar if
there was someone else he could speak to at the Union
regarding this matter and Agar referred him to the
Union's executive board. Guzman called the Union a few
days later to find out when the Union's executive board
met and was told it met at the end of the month. Not
hearing from the Union, Guzman filed charges with the
Board, against the Respondent in this matter, on 23 June
1983.
The Respondent's witnesses gave a somewhat different
account of what transpired between Guzman and the
Union's representatives after Guzman was discharged by
Beth Israel Medical Center on 30 December 1982.
Clifford Trowers testified that he had been the Union's
shop steward for the Hospital's security employees since
1978 and was familiar with the grievance procedure fol-
lowed by the Union and the Hospital in discharge
cases.24 Trowers stated that when he learns that a secu-
rity employee is to be discharged he immediately notifies
the Union, alerting Agar that an employee is going to be
terminated. Trowers next meets with Fogerty, O'Leary,
and the employee involved, in a "Step 1" grievance
meeting wherein Trowers attempts to "work something
out" so that the employee is not discharged. If Trowers
is unsuccessful and the discharge stands, he then notifies
Agar, ascertains the dates Agar is available to meet with
representatives from the Hospital's personnel department,
and calls the personnel director to arrange a "Step 2"
grievance meeting to be attended by Agar, Trowers, the
discharged employee, and representatives from the per-
sonnel department. Trowers added that it is his under-
standing that these arrangements must be made within 5
days of the discharge or "Step 1" grievance meeting.25
verbally contested Guzman 's termination to Fogerty and O'Leary at the
30 December 1982 meeting Moreover, Boyle asserts therein, "[T]hat on
the day of Guzman 's termination , I did not know it was part of the griev-
ance procedure to write it on the back of his termination paper Trowers'
statement restates the facts concerning Guzman's discharge and that ev-
eryone present at the 12 April 1983 meeting heard Copeland testify that
on 28 December 1982, he received a telephone call from either Guzman
or Goodman but was preoccupied at the time and did not record it in the
logbook.
It should be noted that all these statements/letters are addressed to
Bracco, including the covering letter with two addressed also to Agar as
well.
24 Trowers headed the Union's negotiating committee for the current
collective-bargaining contract between the Union and the Hospital cover-
ing security guards.
as Agar also testified regarding the procedure followed by the Union
in grievance discharge cases Agar stated that during "Step 1" of the
grievance process the Union's shop steward , the employee involved, and
hospital representatives meet to discuss the discharge If the shop steward
and the employee contest the termination , either one notifies the Union
about this and the shop steward seeks a "Step 2" meeting with the per-
sonnel director of the Hospital by written notification thereof within 5
days, protesting the Hospital's action When Agar was then shown a
copy of the collective-bargaining agreement and the provisions therein
Trowers continued that he has five assistant shop
stewards to aid him and that they are all instructed as to
the above outlined procedure to be followed in discharge
and suspension cases. Moreover, according to Trowers,
all assistant shop stewards are instructed "regardless of
the circumstances" to call Trowers in the event a dis-
charge or suspension occurs while he is on vacation, and
Trowers makes sure to attend the "Step 2" grievance
meeting personally. Trowers related that Dennis Boyle,
as an assistant shop steward, was familiar with the proce-
dures followed by the Union in such cases and knew of
Trowers' standing order that he be notified anytime a
discharge or suspension occurred while Trowers was on
vacation. 26
Trowers testified that he returned from his vacation a
few days after 1 January 1983, and was for the first time
advised by Boyle that Guzman had been terminated.
Trowers related that he told Boyle, "[T]he five days is
up . . . you shouldn't have waited this long. And he told
me, Trowers, this is the first time that I really had an ex-
perience, a discharge, which is true." Trowers related
that Boyle should have followed the discharge proce-
dures, outlined by him, in connection with Guzman's dis-
charge on 30 December 1982, and that Boyle should not
have waited to contact him until Trowers returned from
vacation. Trowers recounted that during this conversa-
tion, Boyle gave him Guzman's telephone number and
told him that Guzman wanted to contest his discharge.
However, as Trowers admitted in his testimony, he did
not contact Guzman nor notify Agar as to what had hap-
pened, in fact doing nothing, because the 5-day time limi-
tations within which a "Step 2" grievance meeting had
to be convened had expired,27 and in addition, Guzman
relating to discharge and the grievance and arbitration procedure, he ad-
mitted that there was no such requirement therein Agar stated that he
believed that if the shop steward and the employee verbally contested the
fairness of the discharge in "Step 1 " of the grievance procedure, this
would be timely and sufficient notice to the Hospital for the grievance to
move to "Step 2" thereof It is obvious from the record that neither Agar
nor Trowers as fully familiar with the actual requirements set forth in the
contract as concerns discharges and the procedure to be followed under
the grievance and arbitration provisions Trowers' handling of any notice
requirements under these sections appears to have been accomplished
without delay so that no such similar problem as Guzman's had ever
arisen before notwithstanding any misconception of the agreement's re-
quirements Agar added that either the shop steward or the discharged
employee usually alerted the Union that the discharge was being contest-
ed, setting in motion action to arrange the "Step 2 " meeting, between
Agar, the shop steward, the employee, and the Hospital 's personnel di-
rector
26 However, Trowers also testified that when Boyle first apprised him
of Guzman 's discharge , he had told Boyle, "[w]henever you get a dis-
charge, usually act upon it right away if the guy wants to contest it. You
know, you call personnel , you don 't wait for me, you go right in and do
it Then you can get in touch with me and tell me what date the meeting
is going to be and I'll be there " Agar testified that he believed Boyle
was familiar with the requirements under the agreement because he had
been a member of the Union 's bargaining team regarding this agreement
27 However, Trowers also testified that it was his belief that if
Guzman had protested his termination at his discharge meeting on 30 De-
cember 1982, this was sufficient to meet the 5-day notice requirement and
the filing of his grievance was timely Admittedly Boyle had reported to
Trowers that Guzman in fact had protested his discharge at the meeting,
but as Trowers testified , he did not use this to start the grievance proce-
dure because , "I didn't think about that to be honest with you, I [hadn't]
thought about that " However, later in his testimony , Trowers testified
Continued
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL)
had not approached him "formally" to request that he
proceed on Guzman's behal£28 Trowers added that de-
spite his having seen and talked to Guzman at the Hospi-
tal "a couple of times" during the first few weeks follow-
ing his return from vacation, Guzman had failed to men-
tion his discharge to Trowers or make any "formal" re-
quest that Trowers investigate and process his griev-
ance.29
Trowers testified that approximately 3 weeks after he
returned from vacation, Guzman "formally" requested
that he investigate and process Guzman's grievance re-
garding his discharge. Trowers related that Guzman told
him that he had gone to the Union and that Agar had
advised him that "for me to get a hearing on this matter
it would have to go through [Trowers] first," and that
Trowers should look into this matter "right away."
Trowers stated that he told Guzman that "the five days
time is up and why did you wait that long?" Guzman
then apologized to Trowers and said that he was sorry,
that he had initially believed that Trowers was "trying
to screw me up or whatever," but he had changed his
mind and decided that this was not so, and that he was
trying to get his matter grieved and had gone "down to
the union almost every day." Trowers continued that
Guzman told him that he had called the Hospital on the
evening of 28 December 1982 to report his absence from
work,, and that Copeland who was on duty that evening
had taken his call.30 Trowers added that he agreed to in-
vestigate Guzman's matter.
Trowers testified that he checked the logbook but
found no entry therein indicating that a telephone call
had been received from Guzman or Goodman. Trowers
also reviewed the work schedules and determined that
Goodman worked his tour of duty on 29 December
1982, and therefore would have no reason to have called
in to report an absence. Trowers then spoke to Copeland
who told him that he had been on duty that evening,
that there were "many things happening" that night in-
cluding an explosion and fire at the Hospital, and that he
recalled receiving a telephone call from Guzman or
Goodman reporting an absence . Trowers related that the
logbook contained a record of most of the things men-
tioned by Copeland to have occurred that evening, in-
cluding calls to various supervisory security personnel,
but not of the telephone call from Guzman.
that notice of protest must be given to the personnel director within 5
days of the initial grievance meeting wherein the employee is discharged
or suspended
28 Trowers testified that he makes it a point to have an employee who
is disciplined notify him that the employee wishes to pursue the matter
further because Trowers does not want to be placed in a posture wherein
he can be accused of having forced an employee to contest the disciph-
nary action taken by the Hospital against such employee.
29 However, Trowers also testified that during these instances,
Guzman told him that he had been to the "union hall," and had seen
Agar on occasion This part of Trowers' testimony seems to make no
sense and is less than believable in view of Guzman's adamant position in
contesting his discharge and his desire to take it to grievance and arbitra-
tion.
30 Trowers testified that during his questioning of Guzman about the
events leading up to his discharge, Guzman gave him conflicting answers
in regards to the time that Guzman allegedly called the Hospital that
evening to report his absence, i.e., "before eight o'clock" and "after 10,
going into 11."
1139
Trowers recounted that after his investigation he con-
tacted Agar and reported what he had discovered.31
Trowers stated that based on his findings that. the log-
book contained no record of a telephone call from
Guzman on 28 December 1982, the inconsistencies in
Guzman's account of the time he actually called the'
Hospital that evening, and Copeland's account of receiv-'
ing a call from Guzman or Goodman which Trowers did'
not fully credit because the logbook contained no record
of the call, he felt that the Union would be unsuccessful
if it took Guzman's discharge to grievance and-arbitra-
tion.32 Trowers also. mentioned the "five day" period as
being another impediment to winning Guzman's case
against the Hospital in arbitration. Trowers added that
Agar said, "that he would check it out . . . with coun-
sel, and then they would decide whether it should go for
arbitration or not."
Trowers testified that he thereafter spoke to Guzman
on several occasions during which Guzman insisted on
his innocence, that he had called in to report his' absence
as required. Trowers continued
And I kept going back and forth to Copeland all
the time and he said [Clifford], I'll tell you a million
times, I did get a call there from a Guzman or a
Goodman and that's all I'm going to say. I'm going
to say it a million times and I'm not going to
change my story or my statement.
Trowers related that during this, time, he made no at-
tempt to meet with the Hospital's management represent-
atives in order to continue the grievance process or initi-
ate the arbitration process.
Charles Agar testified that in December (982 he was
assigned by the Union as its business representative re-
garding the security guard unit at Beth Israel Medical
Center. Agar related that on 10 February 1983, Guzman
appeared at the, union office and told Union President
Bracco and himself that he had been discharged unfairly
by the Hospital in December 1982. Agar related that this
was the first instance of Guzman contacting the Union
concerning his termination and Agar asked him why he
had waited so long before coming to the Union.33 Agar
" i Trowers testified that this conversation with Agar occurred "a
couple of days or weeks" after he had spoken to Copeland, since Agar
was away and Trowers had to wait until he'returned.
32 At the prompting of the Respondent's counsel, Trowers testified
that another consideration in his recommendation to Agar not to proceed
with Guzman's discharge to grievance and arbitration was Guzman's pre-
vious disciplinary warnings and his 1-day suspension for not reporting his
absence timely. However, when Trowers was referred to art. XX, sec. B
of the collective-bargaining agreement by counsel for the General Coun-
sel, which provides that no disciplinary notice may be introduced in any
grievance or arbitration hearing which has not been issued within 6
months thereof, Trowers acknowledged that the written warning notice
to Guzman preceding his 1-day suspension had been issued over 6
months from the date of his discharge and should not have been consid-
ered in his evaluation of Guzman's case Trowers characterized this as an
"oversight on my part."
33 However, Agar also testified that he was aware that Guzman had
been discharged at least a week before the Union received written notifi-
cation from 'the Hospital on 12 January ' 1983, of Guzman's termination
Agar explained that he took no action at the time regarding this because
neither Trowers, as shop steward, nor Guzman himself had notified the
Continued
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that Guzman replied, "[T]hey didn't notify you?"
whereupon Agar searched his desk and found "a letter
from the hospital saying about his termination." Agar re-
counted that he advised Guzman to speak to Trowers,
"go to the first step and find out what the hospital has to
say about it." Agar also told Guzman that the "time
period" had expired by then and Guzman responded that
he had "personal problems" and was "upset." Agar
added Guzman said that he had not received a copy of
the Union's "contract book, rule book or whatever" and
that Bracco instructed him to give Guzman a copy,
which Agar did and then Guzman left the office. Ac-
cording to Agar, Guzman did not explain the circum-
stances surrounding his discharge other than to tell them
that he had "called in at the hospital that night."
Guzman mentioned nothing about having any witnesses
to support his assertion.34
Agar testified that a couple of weeks later, Trowers
called him and said that he had spoken to Guzman and
that "Guzman was at the hospital and the hospital was
complaining that he was harassing people." Agar contin-
ued that later in February 1983 Trowers called him and
advised Agar that he had checked the logbook, and that
no call from Guzman was recorded in the book for the
evening of 28 December 1982, when Guzman alleged he
had called the Hospital. Trowers again mentioned to
Agar that Guzman was at the Hospital and the Hospital
"didn't want him around in the area." Agar stated that
Trowers told him that "the case didn't merit going any
further." Agar maintained that at that time, he made the
decision "not to pursue the case," based on the results of
Trowers' investigation, Trowers' recommendation, and
Guzman's record of a prior suspension, which Agar was
aware of because there was a copy of a notice of such
suspension in the Union's files.35 36 According to Agar,
Copeland's name was not mentioned in his conversation
with Trowers.37
Agar related that sometime in late March 1983
Guzman returned to the union office and told Agar that,
"[H]e got his case together, he got his witness," for the
first time mentioning Copeland's involvement in the
matter.38 Agar stated that Guzman explained that Cope-
Union that the discharge had been contested Agar acknowledged that he
had not consulted with Trowers when he first became aware of Guz-
man's termination , this despite the fact that in the normal course of busi-
ness, he spoke to Trowers at least once a week. Agar also acknowledged
that this was the first discharge matter occurring after he had become the
Union's business representative for the security guard unit at Beth Israel
Medical Center.
34 Again, this is hard to believe in view of Guzman 's enthusiasm in
pursuing his grievance and in view of his willingness to relate the full
story to anyone who could presumably help him
35 On cross-examination, Agar now remembered that Trowers had also
told him that he had spoken to "people there and that nobody could
verify that he called in." (But how about Copeland 's statement?)
33 Agar admitted that he did not tell Guzman about his decision at the
time not to pursue his grievance but only raised the issue of the "timeli-
ness of the matter" as a problem . Moreover, Agar testified that he never
became fully convinced that Guzman "was innocent" in this matter.
37 This seems incredible in view of Trowers' testimony and the possi-
ble importance of Copeland's statements
38 Agar testified that sometime during the end of March 1983 Guzman
came to the union office and asked Agar if he , Guzman, could conduct
his own investigation in this matter and Agar told him, "[F]eel free to do
anything you want "
land would only testify about what had occurred on 28
December 1982, if Agar was present. Agar told Guzman
that he was going to be present at the Hospital on 12
April 1983 concerning another matter, and if the Hospi-
tal would agree , Guzman could meet him there to see
what could be done. Agar then called Trowers about
what Guzman had told him and Trowers said that "Co-
peland was changing his statement now, he thinks that
Goodman or Guzman was a call."
Agar testified that on 12 April 1983 he met with Fo-
gerty and O'Leary at the Hospital to discuss a matter in-
volving all the security guards at the Hospital. At the
conclusion of this meeting, Guzman was brought in
along with Copeland to relate what had transpired on
the evening of 28 December 1982. According to Agar,
Copeland stated, "[H]e got a call from somebody that
night. [Agar] said to him, but that's not what you said in
the beginning. [Copeland] said no, I always said it. I got
a call from somebody."39 Agar stated that after the
meeting ended, he, Trowers, and Guzman went to the
hospital lobby where Guzman insisted that the Union
take his discharge to arbitration. Agar told Guzman that,
"[Y]ou didn't file in time," and Guzman responded,
"That has nothing to do with me."40 Agar advised
Guzman that the decision whether to take this matter to
arbitration could only be made after consultation with
the Union's attorneys and that, after this occurred,
Guzman should contact the Union and Agar would tell
him if the Union would proceed further in the case.
Agar added that within a week after this meeting, he
spoke to the Union's legal counsel and a few days later,
in early May 1983, Guzman called the Union and Agar
told him that the Union was not going to take his case to
arbitration on "advice of counsel."
Agar continued that sometime in early May 1983,
while attending a hearing at the Hospital with Kathy
Dowling, the Hospital 's personnel director, he asked her
if the Hospital would "reconsider discussing the Guzman
case." Agar related that Dowling refused to do so for
the reason that "the time period is over." Agar main-
tained that Guzman had never personally brought him
any written statements from witnesses41 nor offered to
produce the neighbors from whose apartment Guzman
had made the telephone call to the Hospital on the
evening of 28 December 1982.42 Agar admitted that
39 Notwithstanding his acknowledgement that he had heard both
Guzman and Copeland testify herein that at the 12 April 1983 meeting,
Copeland had stated that he received a telephone call from either
Guzman or Goodman on 28 December 1983, Agar maintained that Cope-
land had testified that he received a phone call from "somebody," and
never mentioned the names of Guzman or Goodman as possibly having
made the call
40 Agar acknowledged that he had never spoken to Boyle about Guz-
man's case and had never asked Trowers whether Boyle or Guzman had
protested the discharge at the meeting on 30 December 1982 when
Guzman was discharged.
41 However, Agar did testify that after the Union's attorneys recom-
mended that Guzman 's case be sent to arbitration , he checked the
Union's Beth Israel Medical Center file and discovered the statements
Guzman had sent to the Union by letter dated 9 June 1983
42 Guzman had testified that he did offer to bring in such witnesses if
the Union felt that this would support his contentions
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL)
Guzman had told him that he had been denied unem-
ployment compensation benefits . Moreover , in August
1983 the Union "filed for arbitration " in Guzman 's case.
Vincent Bracco testified that sometime in February
1983 Guzman appeared at the Union 's office and told
Agar that he had been "unjustifiably" discharged by the
Hospital and when his termination had occurred . Bracco
stated that Guzman did not make mention of "why he
had unjustly been discharged ." Bracco related that Agar
asked Guzman why he had waited "all this time" before
contacting the Union and Guzman answered that he had
a lot of family problems and had just gotten around to
coming to the Union . Agar told Guzman that there was
"a time situation over here to file, process any griev-
ance," and Guzman said that he was "unaware of the
rules . . . he had no contract ." Bracco recounted that he
instructed Agar to provide Guzman with a copy of the
collective-bargaining agreement, which Agar did, and
then Agar told Guzman "to go back to Trowers to dis-
cuss the matter and get back to us to see what could de-
velop."43
Bracco testified that Guzman came to the union office
again in late February or early March 1983 , but Agar
was not present in the office at the time . Guzman told
Bracco that he felt that the Union was not representing
him and was doing nothing to help him. Guzman also
told Bracco that "he knows people from the Labor
Board," to which Bracco responded, "[Y]ou have a
right, if you feel that you 're not being represented by us
to go anywhere you feel to get proper representation.
But you do have to give us something to go by to repre-
sent you properly." Guzman then left the premises.
Bracco continued that in the latter part of May 1983, he
received a telephone call from "someone from the Labor
Board ," who told him that Guzman was there at the
Board 's offices, that he just wanted the Union to repre-
sent him if he could prove his case . Bracco stated that he
told "this person" that "you would have to speak to my
attorney if he 's filing any charge,"44 and when Bracco
was told by the Board agent that Guzman was not filing
a charge, Bracco said , "[Guzman's] been told if he can
prove the case come back to us and we 'll investigate. If
we have the proof, we'll see what we can do from that
point." Bracco related that he told the Board agent that
this included the possibility of the Union taking Guz-
man's matter to arbitration . Bracco could not recall if the
Board agent had mentioned anything about Guzman
"procuring certain written statements" after which the
Union would go to arbitration . Moreover, Bracco denied
that he had ever discussed his conversation with the
Board agent , with Agar.
Bracco recounted that "a couple of days later,"
Guzman returned to the union office and gave him a
letter from Boyle that Guzman believed would prove his
case. After reviewing the letter , Bracco told Guzman
that it did not establish that Guzman had called in to
49 Bracco testified that he was sitting at his desk which is situated
right behind Agar 's, when this conversation took place , and could over-
hear all that was being said between Guzman and Agar.
44 Bracco testified that all the Union 's employees are instructed not to
give any statements to Board agents , "they're to refer it to our attor-
neys "
1141
report his absence as he alleged , but merely stated what
Boyle believed to have happened and that Boyle had
contested Guzman 's discharge to hospital representatives
at the 30 December 1982 meeting . Bracco testified that
he told Guzman that , "[W]e need some statements to the
fact of what took place . We need statements from each
and every one of them that you did call in or something
where we can go forward ." Bracco stated that Guzman
said that he would secure the needed additional state-
ments to substantiate his story and then he left.45 Ac-
cording to Bracco's testimony , there was no discussion in
their conversation of "the Labor Board at any time."
Bracco denied that Guzman ever submitted any other
written statements of witnesses to the Union to support
his case, denied that he had refused to take such state-
ments proffered by Guzman because Guzman "was
going to the Labor Board," and denied that he had ever
told Guzman that "the Union would not handle his case
any more because the Labor Board had it."
Moreover , article XIX (Grievance and Arbitration) of
the collective-bargaining agreement between Beth Israel
Medical Center and the Union provides:
C. Any grievance shall be submitted within a rea-
sonable time through the Shop Steward and/or a
Union Representative to the Director of Security
whose answer shall be given no later than three (3)
days after submission of the grievance to the Direc-
tor of Security.46
D. If, after 3 days, the matter has not been set-
tled, the Union Representative and the Personnel
Director of the Administrator of the Hospital or his
designee shall meet within 5 days and attempt to re-
solve the matter at issue . If the matter is not satis-
factorily resolved within 72 hours after such discus-
sions have begun , either the Union or the Hospital
may submit the matter to arbitration before the mu-
tually agreed Impartial Chairman.
Article XX,A (Discharge and Suspension) of the
agreement provides:
In all cases involving the discharge or suspension
of an employee , the Hospital must immediately
notify the employee in writing of his discharge or
suspension and the reason therefor . Such written
notice shall also be given to the Shop Steward and
copy mailed to the Union within twenty-four (24)
hours from the time of the discharge or suspension.
If the Union desires to contest the discharge or sus-
pension, it shall notify the Hospital within five (5)
working days from the receipt of notice of dis-
charge or suspension.47
as Bracco denied that Guzman had shown him any other statements
from witnesses on that day.
46 Trowers testified that he knew that a "written " notice of grievance
is not required within 5 days after an employee is discharged or suspend-
ed in order to start the grievance process in motion.
44 Trowers admitted that he was unaware at the time that the collec-
tive-bargaining agreement required the Hospital to immediately notify in
writing the employee who had been discharged or suspended , and the
Union within 24 hours of the discharge, about such disciplinary action
Continued
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Credibility
After carefully considering the record evidence herein,
and based on my observation of the demeanor of the wit-
nesses, the weight of the respective evidence, established
or admitted facts, inherent probabilities, and reasonable
inferences which may be drawn from the record as a
whole,48 I credit the testimony of the General Counsel's
witnesses , Edwin Guzman, Roger Copeland, and Debo-
rah Glass, for the reason, among others as will be set
forth hereinafter, that their testimony was usually clear,
detailed, forthright, and unequivocal, and generally con-
sistent with the other evidence present in the record and
with what can reasonably and logically be found and/or
inferred therefrom, and mostly consistent with each
others.49
In contrast thereto, the testimony of the Respondent's
witnesses, Charles Agar, Vincent Bracco, and Clifford
Trowers, at times lacked detail and clarity, was evasive,
and appeared contrived and self-serving especially in the
case of Agar and Bracco. It was also contradictory and
inconsistent in some aspects particularly as between their
own testimony, and in the overall context of the evi-
dence present in the record, was unbelievable and could
be reasonably considered in instances as nonsensical.
For example, Agar testified that Guzman waited until
10 February 1983 before presenting his grievance to the
Union. While there may be some confusion regarding
whether Guzman first met with Agar on 6 January 1983
or 17 January 1983,50 Agar's contention that he never
and the reason or reasons therefore Agar also testified that he was un-
aware of this provision in the contract , although at first he stated that he
was aware of it, then changed his testimony
48 Northway Nursing Home, 243 NLRB 544 (1979), Gold Standard En-
terprises, 234 NLRB 618 (1978), Northridge Knitting Mills, 225 NLRB
1054 (1976) Also see Cos Walker's Cash Stores, 249 NLRB 316 (1980)
49 I am aware that Guzman's testimony is not without its flaws, exhib-
iting some confusion about dates For example, in his pretrial affidavit,
Guzman placed his first meeting with Agar on 17 January 1983, while at
the hearing he testified that this had occurred on 6 January 1983. Al-
though he attempted to explain this discrepency by pointing out that he
gave the affidavit in an agitated state without access to his notes and
thereafter when he rechecked his facts he was able to ascertain that 6
January 1983 was the correct date, his confusion remained apparent as to
various dates between 6 January and 12 April 1983 However, this type
of confusion or inconsistency surrounding dates, in testimony occurring
many months after the events these dates reflect, is neither surprising nor
especially damaging to Guzman's overall credibility C-F Air Freight, 247
NLRB 403, 405 fn 5 (1980) Moreover, Guzman's testimony that he saw
his discharge letter on Agar's desk on 6 January 1983 when according to
the Union's mail stamp thereon, the letter was not received by the Union
until 12 January 1983 reflects and supports Guzman's confusion but the
error does not necessarily undermine his credibility generally C-F Air
Freight, supra Nor is the inconsistency in Guzman's testimony concern-
ing whether he told Trowers about Copeland during their first conversa-
tion regarding his discharge, particularly damaging to Guzman's credibil-
ity, or unexpected given the confusing context of the questioning of
Guzman concerning this Moreover, it should be noted that the testimony
of both Copeland and Glass was generally corroborative of Guzman's
testimony where applicable and both were disinterested witnesses herein,
less likely to fabricate an untrue account of what occurred during events
in which they participated
50 It is difficult to ascertain from the evidence herein exactly when
Guzman visited the Union and spoke to Agar about his discharge for the
first time However, the evidence strongly suggests that this occurred
sometime between 6 and 17 January 1983 Consider the testimony of
Guzman, Trowers, and Copeland Also see R Exh 3A and C P Exh 1
met with Guzman until 10 February 1983 is contradicted
not only by Guzman's testimony, but also by the Re-
spondent's own shop steward, Trowers. Trowers testified
that he first spoke with Guzman about his discharge ap-
proximately 3 weeks after he returned from vacation
which would place the conversation somewhere around
17 January 1983 and that in this conversation Guzman
advised him that he had been to the Union, spoken to
Agar, and that Agar directed him to seek out Trowers in
order to process his grievance. Similarly, Agar' s testimo-
ny that during their conversation on 10 February 1983,
Guzman merely exclaimed his "innocence" and neither
discussed the details of his discharge nor mentioned that
he had a witness, Copeland, who could corroborate his
story, strains credulity. It is hard to believe, as Agar in-
sists, that Guzman, having sought out the Union for help
in grieving his discharge, would refrain from disclosing
all the circumstances of his termination, the identity of
the witness who could apparently prove his innocence
and exonerate him, and as to what evidence that witness
could testify to.51
Additionally, Agar testified that the first time he dis-
cussed Guzman's discharge in depth with Trowers was
when Trowers called the Union to report the results of
his "investigation" of Guzman's case . While Agar denied
that Copeland was discussed in this conversation,
Trowers, in connection with this same conversation,
clearly testified that he had told Agar that Copeland ac-
knowledged that he had been on duty and had received
a phone call from either Guzman or Goodman on the
evening in question, but that Trowers had doubts about
his story.
Moreover, Agar incredibly testified that at the meeting
with hospital representatives on 12 April 1983, at which
Copeland appeared to tell his story, Copeland only
"mentioned that he got a call from somebody," but that
Copeland never "mentioned any names." Agar's testimo-
ny was contradicted by the testimony of Copeland,
Trowers, and Guzman, all of who testified that at this
meeting , Copeland stated that, on 28 December 1982, he
received a call from either Guzman or Goodman, "what
he had been saying about fifty times since it happened."
Agar's declaration that he never heard Copeland men-
tion any names at the 12 April meeting is not only unbe-
lievable, but unsupported by the credible evidence
herein. 5 2
Regarding his telephone conversation with Board
Agent Glass, Bracco testified that he initially told her
that if Guzman was filing a charge with the Board then
she would have to speak to his attorney, not to Bracco
himself. Glass did not mention this in her testimony.
Glass testified that Bracco had told her that, "Oh well, if
he's gone to the Labor Board, forget it, you can just
handle it." Bracco made no mention of this latter state-
5 i This is particularly true in light of Guzman's seemingly dogged de-
termination to contest his discharge and prove his innocence, and his ap-
parent readiness as witnessed by his testimony herein , to tell his story on
the witness stand in excruciating and repetitive detail
52 Regarding Agar's testimony, the General Counsel in her brief states
that it is "characteristic of the overall disingenuity that pervades his
entire testimony in this proceeding " I tend to agree with her character-
ization
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL)
meat in his testimony. I credit Glass' testimony herein
not only for the reasons asserted hereinbefore, i.e., that
she testified in an open and frank manner and is a disin-
terested party in this proceeding without any self-serving
motive, but also because her testimony tends to be cor-
roborated by Guzman's. Guzman testified that when he
brought the witnesses' statements to Bracco, as the
Union had requested, in support of his case, Bracco re-
fused to accept them stating that the Union would not
process his case because, "the labor board, they're taking
care of it." Bracco's statements to both Glass and
Guzman have a continuity and connection which is hard
to disregard or discredit, by Bracco's mere denial there-
of.
Bracco also testified that a few days after his conversa-
tion with Glass, Guzman came to the union office and
showed him a letter from Boyle. Bracco told Guzman
that Boyle's letter was insufficient to prove his allega-
tions and that he had to obtain additional proof in the
form of statements, "to the fact of what took place. We
need statements from each and every one of them that
you did call in or something where we can go forward."
Guzman testified that on 27 May 1983 he went to the
union office and offered four statements to Bracco as
evidence in support of his assertions, but Bracco refused
to accept them stating, "The Labor Board is handling it
now." Again the record evidence supports Guzman's
version of what, occurred rather than Bracco's. The
statements of Copeland, Boyle, Trowers, and Guzman
are all dated 27 May 1983.53 Because Guzman had pre-
viously shown a letter of Boyle's to Agar, who had ex-
pressed his opinion that the letter was insufficient to sup-
port Guzman's allegations, and because from the dates of
the four statements it can be assumed that Guzman had
all four in his possession on 27 May 1983, it is inconceiv-
able that he would present only Boyle's letter to Bracco
in support of his case. Moreover, given Agar's and Brac-
co's insistence on such evidence before the Union would
consider taking Guzman's discharge to arbitration, Brac-
co's account of their conversation becomes implausible.
In contrast, Guzman's version of what occurred on 27
May 1983 is consistent with both the documentary and
testamentary evidence introduced in this ',proceeding.54
C. Analysis and Conclusions
1. Deferral to arbitration
The Respondent seeks a stay of this proceeding pend-
ing arbitration.55 'Citing United Technologies Corp., 268
53 There is no-evidence in the record controverting this fact and the
Respondent had ample opportunity to cross-examine Trowers and Cope-
land both to the dates and contents of their statements.
14 Additionally and as set forth herembefore, i.e., Guzman testified
that when he met Bracco in the hall at the union office on 27 May 1983
and attempted to give the statements to Bracco, Bracco refused to accept
them stating, "You have the labor board to handle it " This testimony is
consistent with Bracco's response to Glass 2 days earlier when he first
heard that Guzman was at the Labor Board.
ss As indicated herembefore, the Respondent "requested arbitration of
the Guzman discharge in August, 1983." While the Respondent notified
me by letter dated 25 June 1984, that an arbitration hearing "on the
merits" of Guzman's discharge was "tentatively scheduled for August 1,
1984," and a lengthy period of time has elapsed since that date, I have
received no information about whether the arbitration hearing ever actu-
1143
NLRR 557 (1984), the Respondent maintains that, "Any
further consideration of this case should be deferred
pending arbitration." Whether deferral is appropriate is a
threshold question which must be decided in the nega-
tive before the merits of the unfair labor practice allega-
tions can be considered.56
It is well settled that under certain circumstances the
Board will decline to exercise its jurisdiction in deference
to an arbitrator's award or to the grievance-arbitration
process embodied in a collective-bargaining agreement.
In Spielberg Mfg. Co., 112 NLRB 1080 (1955), the Board
deferred to an arbitral award upholding the discharge of
four strikers and in doing so set forth the following
standards:
[Deferral to an arbitrator's award is appropriate
when] the proceeding appears to have been fair and
regular, all parties had agreed to be bound, and the
decision of the arbitration panel is not clearly re-
pugnant to the purposes and policies of the Act.57
The Board noted therein that its objective in fashioning
the deferral doctrine was to encourage the "voluntary
settlement of labor disputes."
Subsequent to the Spielberg case, the Board has ex-
tended its deferral doctrine to cases in which, an arbitra-
tion award has not as yet been issued. In Dubo Mfg.
Corp., 142 NLRB 431 (1963), the Board, citing Congres-
sional preference for the voluntary resolution of labor
disputes,58 deferred action on allegations of discrimina,
ally took place and, if it did, the outcome thereof, and what, if any, deci-
sion was rendered by the impartial arbitrator in Guzman' s case.
ss L E Myers Co., 270 NLRB 1010 fn. 2 (1984).
sv Since the Spielberg decision, the Board has added an additional
standard for deferral. In Raytheon Co., 140 NLRB 883 (1963), set aside on
other grounds 326 F.2d 471 (1st Cir. 1964), the Board held that the issue
involved in the unfair labor practice case must have been presented to
and considered by the arbitrator Subsequently, the Board, in Electronic
Reproduction Service Corp., 213 NLRB 758 (1974), overruled the Raytheon
and similar cases, in holding that the Board would now defer to an arbi-
trator's award even when there was no indication that the arbitrator had
considered such issue Thereafter, in Suburban Motor Freight, 247 NLRB
146 (1980), the Board overruled Electronic Reproduction Service Corp.,
supra, and like cases, returning to the standard enunciated, by the Board
in the Raytheon case. In turn, the Board in Olin Corp., 268 NLRB 573
(1984), overruled Suburban Motor Freight, supra, and announced that it
would henceforth defer to an arbitrator's award so long as the contrac-
tual and unfair labor practice issues were factually ,parallel and the arbi-
trator was generally presented with the facts relevant to resolving the
unfair labor practice and the award was "not palpably wrong." However,
the Board in Olin emphasized that it was not returning to the Electronic
Reproduction Service Corp., supra, rule which required no more than that
the parties had an opportunity to litigate the unfair labor practice before
the arbitrator in order to trigger referral. Olin Corp., supra, 268 NLRB at
575 fn. 10. Since the Olin decision, the Board has liberally deferred to
arbitrator's awards See Ohio Edison Co., 274 NLRB 874 (1985); United
Parcel Service, 274 NLRB 667 (1985), Joseph Schhtz,Co., 273 NLRB 1604
(1985), Hospital Employees District 1199E (Pennsylvania Nursing), 273
NLRB 1459 (1985); Ryder Truck Lines, 273 NLRB 713 (1984), Yellow
Freight Systems, 273 NLRB 44 (1984) Also see J & H Rainwear, 273
NLRB 497 (1984); Alpha Beta Co., 273 NLRB 1546 (1985).
58 Sec. 203(d) of the-Act provides that, "Final adjustment by a method
agreed on by the parties is declared to be the desireable [sic] method for
settlement of grievance disputes over the application or interpretation of
an existing collective-bargaining agreement " However, under the
Board's Dubb policy, deferral where applicable, is avoided only by forgo-
ing the use of the grievance-arbitration machinery.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Section 8(a)(3) of the Act pending completion of the
grievance-arbitration process where the dispute was al-
ready being handled within that process pursuant to a
court order. The Board stated therein:
[T]he Board has recognized existing arbitration
awards, and in certain circumstances has required
parties before resorting to Board processes to utilize
the grievance and arbitration procedure in agree-
ments to which they are signatory. These consider-
ations are clearly applicable here where not only do
the parties have an available procedure to settle the
dispute, but a United States District Court has or-
dered them to utilize it. It would clearly frustrate
the intent expressed by Congress if the Board were
now to permit the use of the Board's processes to
enable the parties to avoid their contractual obliga-
tions as interpreted by the Court.
Thereafter, in Collyer Insulated Wire, 192 NLRB 837
(1971), the Board adopted a definite system of prearbitral
deferral. Collyer involved an 8(a)(5) charge, alleging uni-
lateral changes in conditions of employment, and in
ruling that it should and would defer to existing griev-
ance-arbitration procedures prior to either parties invoca-
tion of these procedures, the Board held that it would do
so in the following circumstances: Where the dispute
arose "within the confines of a long and productive col-
lective bargaining relationship"; where there is no claim
of "enmity by Respondent to employee's exercise of pro-
tected rights"; where "Respondent has ... credibly as-
serted its willingness to resort to arbitration under a
clause providing for arbitration in a very broad range of
disputes and unquestionably broad enough to embrace
'the dispute before the Board"'; where the contract and
its meaning "lie at the center of this dispute"; and where
the dispute is eminently well suited to resolution by arbi-
tration.59 However, in Collyer the Board retained its ju-
risdiction in the matter and would thereafter decide the
merits of the case on a proper showing that the griev-
ance was not, with reasonable promptness, resolved by
settlement or arbitration or that the arbitral proceeding
and/or the resulting award failed to meet the Spielberg
standards. 60
Moreover, in National Radio Co., 198 NLRB 527
(1972), the Board extended deferral to cases arising
under Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of
the Act. However, in General American Transportation
Corp., 228 NLRB 808 (1977), the Board overruled Na-
tional Radio thus insulating individual rights from the de-
ferral doctrine. Subsequently, in United Technologies
Corp., supra; the Board overruled General American
Transportation, holding that henceforeth, it would Col-
lyerize cases arising under the above sections of the Act.
S9 Collyer Insulated Wire, supra at 842
80 In United Technologies Corp, supra 268 NLRB at 560, the Board
reaffirmed its retention of jurisdiction policy stating
[D]eferral is not akin to abdication It is merely the prudent exercise
of restraint , a postponement of the use of the Board 's processes to
give the parties ' own dispute resolution machinery a chance to suc-
ceed The Board's processes may always be invoked if the arbitrai
result is inconsistent with the standards of Spielberg.
In reaching this decision the Board affirmed the policies
expressed in Collyer.61
In United Technologies Corp., the Board continued at
560:
The Collyer policy we embrace today is one that
has been applied with the rule of reason . In their
dissenting opinion in General American Transporta-
tion , supra, former Members Penello and Walther
observed:
The Board has not deferred cases to arbitration
in an indiscriminate manner , nor has it been in-
sensitive to the statutory rights of employees in
deciding whether to defer and whether to give
effect to an arbitration award. The standard it has
used is reasonable belief that arbitration proce-
dures would resolve the dispute in a manner con-
sistent with the criteria of Spielberg. Thus it has
refused to defer where the interests of the union
which might be expected to represent the em-
ployee filing the unfair labor practice charge are
adverse to those of the employee, or where the
respondent's conduct constitutes a rejection of
the principles of collective bargaining. And
where, after deferral, the respondent has refused
to proceed to arbitration, the Board has rescinded
the deferral and decided the case on the merits.
Finally, if for any reason the arbitrator 's award
fails to meet the Spielberg standards, as for exam-
ple, that it is repugnant to the policies of the Act,
the Board will not give it effect.
We shall continue to be guided by these principles.
[Emphasis added.]
In requesting deferral in this case the Respondent
noted the Board's strong support of the deferral doctrine
as expressed in United Technologies Corp., supra, and
argues that, in light of the fact that the Union requested
arbitration of Guzman's grievance in August 1983, the
instant case should be deferred pending the arbitral pro-
ceeding. While the General Counsel did not address this
issue in her brief, at the hearing the General Counsel
argued that under Collyer and Dubo this case is not one
for deferral to arbitration because the interests of the in-
dividual who filed the unfair labor practice charge herein
are adverse to the Respondent's interests, the Respondent
being the same Union which would represent that indi-
vidual in the arbitration, and for the additional reason
that the Employer, Beth Israel Medical Center, has re-
fused to waive the contractual time limits and thus there
61 The Board stated in United Technologies Corp , supra 268 NLRB at
559
Simply stated , Collyer worked well because it was premised on
sound legal and pragmatic considerations Accordingly, we believe it
deserves to be resurrected and infused with renewed life
The complaint in United Technologies alleged that the Respondent violat-
ed Sec 8(a)(1) of the Act by threatening an employee with disciplinary
action if she persisted in processing her grievance to the next step The
Board emphasized therein that such allegations were clearly cognizable
under the broad grievance-arbitration provisions in the parties ' collective-
bargaining agreement
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1145
is no assurance that the merits of the case would ever
reach an arbitrator.62
In agreement with the General Counsel, I find ' and
conclude that under the principles embodied in Collyer,
Dubo, and United Technologies, deferral is unwarranted
and inappropriate in this case. It is well established that
deferral is not warranted where the interests of the
Union are not in substantial harmony with those of the
grievant, and deferral herein would involve representa-
tion by the Respondent, a union whose interest is clearly
inimical to the dischargees.63 The complaint in this case
is directed at the Union who would represent the Charg-
ing Party at the arbitration and, indeed, it is difficult to
imagine how the Respondent could possibly represent
Guzman's interest when the Union is, in fact, an adver-
sary. Were this case deferred to the arbitral process, the
Charging Party herein would unquestionably fmd himself
at the center of a controversy being fought by two hos-
tile entities, the employer who fired him and the Union
who allegedly failed to properly and fairly represent
him. Thus the interests of the 'aggrieved' individual are in
direct conflict with and adverse to the interests of the
Union. 64
The instant case is also inappropriate for deferral for
the reason that the complaint herein alleges that the Re-
spondent violated Section 8(b)(1)(A) of the Act by fail-
ing and refusing to process Guzman's grievance because
he "sought assistance from the National Labor Relations
Board." The resolution `of questions concerning access to
Board processes has always been held to be solely within
the Board's province to decide. 65 In International Har-
vester Co., 271 NLRB 647 (1984), the Board stated:
The Board has consistently held that allegations
of an employer's violation of Section 8(a)(4) will
not be deferred to arbitration. In United Technol-
82 The Respondent apparently seeks to counter the General Counsel's
latter argument by asserting that the Union requested arbitration of Guz-
man's discharge in August 1983 and in its letter dated 25 June 1984 the
Respondent advised me that a hearing on the question of the arbitrability
of Guzman's discharge was scheduled before an arbitrator on 23 July
1984 and a hearing on the merits is tentatively scheduled for 1 August
1984. Furthermore, with the letter the Respondent enclosed another deci-
sion, by the same arbitrator scheduled to hear the Guzman grievance,
and involving a security guard at Beth Israel Medical Center, which
upheld the Union's position therein as to "timeliness." Noting this deci-
sion, the Respondent argued in this letter that, "This opinion now makes
it clear that the position of Local 814 before the arbitrator on the arbitra-
bility of the Guzman case will have a substantial basis. In light of these
factors and the Board's recent direction concerning the deferral of cases
pending arbitration United Technologies Corp., 268 NLRB 557 (1984), Re-
spondent renews its request and motion that consideration of this case be
deferred pending arbitration." After reviewing the arbitrator's decision, I
note that his finding turned on facts peculiar to that case, that the facts
and circumstances therein are significantly different in material aspects
with the Guzman case, and that this opinion is not necessarily decisive in
the case at bar, all of which raises a question in my mind regarding
whether the merits of Guzman's case could ever reach the arbitrator for
consideration Be that as it may, there are other reasons, discussed herein-
after, which mitigate against deferral in the instant case.
62 Hendrickson Bros, 272 NLRB 438 (1984), United Technologies Corp.,
supra at 560, Gloria's Manor Home for Adults 225, NLRB 1133 (1976);
National Radio Co., 198 NLRB 527 (1972)
64 Pacemaker Yacht Co., 253 NLRB 828 fn 1 (1980); Electrical Workers
Local 401, 251 NLRB 321 fn.' 3 (1980).
66 McKinley Transport, 219 NLRB 1148 (1975), Kansas Meat Packers,
198 NLRB 543 (1972).
ogles, the Board returned to the deferral- policy
originally established in Collyer Insulated Wire
[supra] and made clear that the Board will now
defer to arbitration' complaints alleging a violation
of Section 8(a)(1), (3), or (5) where the underlying
issues are cognizable under the grievance-arbitration
provisions of the parties' collective-bargaining
agreement. United Technologies does not address the
Board's established position concerning alleged vio-
lations of Section 8(a)(4). . . . In Filmation Associ-
ates,2 the Board stated:
The 'prohibition expressed in Section 8(a)(4)
against discharging or otherwise discriminating
against an employee because he has filed charges
or given testimony under the Act is a fundamen-
tal guarantee to employees that they may invoke
or participate in the investigative procedures of
this Board without fear of reprisal and is clearly
required in order to safeguard the integrity of the
Board's processes. In our view the duty to preserve
the Board's processes from abuse is a function of
this hoard and may not be delegated to the parties
or an arbitrator. [Emphasis added.]
In addition, we fmd that where, as here, there are
alleged violations of Section 8(a)(3) and (1) that are
"closely intertwined" with the allegations involving
Section 8(a)(4), deferral of those statutory issues is
equally inappropriate. To hold otherwise would be
contrary to the Board's established policy. More-
over, it would be inefficient for the judge to resolve
only the alleged violation of Section 8(a)(4) and not
the related allegations concerning Section 8(a)(3),
and'(1) where, as here, a hearing on all the alleged
violations has already been held. Accordingly, we
will not defer resolution of the alleged violations of
Section 8(a)(4), (3), and (1) in this case to arbitra-
tion... .
2 227 NLRB 1721 (1977). Accord- Postal Service, 227 NLRB
1826 (1977').65
The similarity between the instant case and Interna-
tional Harvester is strikingly apparent and analogous.
United Technologies also made clear that the Board will
also defer to arbitration complaints alleging a violation of
Section 8(b)(1)(A) of the Act. Both the Supreme Court
of the United States and the Board have found labor or-
ganizations to have violated Section 8(b)(1)(A) of the
Act where such labor organization has penalized a
member for filing charges against it with the Board or
for otherwisee, availing oneself of the Board's assistance or
processes.67 This being so the Board's "duty to preserve
the Board's processes from abuse," this being a function
of the Board which "may not be delegated to the parties
or an arbitrator," makes deferral in this case inappropri-
ate. ' Moreover, because the allegations of violations of
66 Also see Houston Chronicle Publishing Co, 227 NLRB 1829 (1977).
67 NLRB v. Shipbuilders 391 U.S. 418 (1968); Longshoremen ILA Local
6, 210 NLRB 666 (1974).
1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8(b)(1)(A) herein are "closely intertwined," de-
ferral of those statutory issues would be equally inappro-
priate.68 Additionally, it would be inefficient for me to
resolve only the allegations pertaining to the Respond-
ent's failure and refusal to process Guzman's grievance
because he sought assistance from the Board, a violation
of Section 8(b)(1)(A) of the Act, and not the related alle-
gation concerning its failure and refusal to process his
grievance thereby failing to represent Guzman for rea-
sons which were unfair, arbitrary, invidious, and a
breach of its fiduciary duty owed to employees whom it
represented, also a violation of Section 8(b)(1)(A), when,
as here, a hearing on all the alleged violations has al-
ready been held.69
2. The duty of fair representation
Section 8(b)(1)(A) of the Act makes it an unfair labor
practice for a labor organization to "restrain or coerce"
employees in the exercise of the rights guaranteed them
in Section 7 of the Act, "Provided , that this paragraph
shall not impair the right of a labor organization to pre-
scribe its own rules with respect to the acquisition or re-
tention of membership therein ." 70 Section 7 of the Act
protects the right of employees to engage in union or
other concerted activities or to refrain from such activi-
ties . The rights protected by Section 7, however , are lim-
ited by the principle of exclusive representation set forth
in Section 9(a) of the Act . 71 In view of the restraints im-
posed on individual employee rights by the principle of
exclusive representation , the courts and the Board have
imposed on labor organizations a reciprocal obligation of
the Act to fully and fairly represent all the employees.72
As the United States Court stated in Vaca v. Sipes, 386
U.S. 171, 177, 190 (1967):
It is now well established that, as the exclusive
bargaining representative of the employees . . . the
Union [has] a statutory duty fairly to represent all
of those employees , [and that this duty] includes a
statutory obligation to serve the interests of all
members without hostility or discrimination toward
88 International Harvester Co , supra
89 Ibid As to additional arguments against deferral in the instant case,
i e , that the dispute at bar is not cognizable under the parties' collective-
bargaining agreement , and that the Hospital contests the timeliness of
Guzman's grievance, see respectively, Teamsters Local 519 (Rust Engi-
neering), 275 NLRB 433 (1985), Electrical Workers IBEW Local 1316 (Su-
perior Contractors), 271 NLRB 338 (1984), Musicians Union Local 47, 255
NLRB 386 (1981), and Detroit Edison Co, 206 NLRB 898 (1973)
70 The purpose of and policy behind Sec 8(b)(1)(A), as set forth in
Sec 10(b) of the Act, is "to protect the rights of individual employees in
their relations with labor organizations "
71 Sec 9(a) of the Act provides
Representatives designated or selected for the purposes of collective
bargaining by the majority of the employees in a unit appropriate for
such purposes, shall be the exclusive representative of all the em-
ployees in such unit for the purposes of collective bargaining in re-
spect to rates of pay, wages, hours of employment, or other condi-
tions of employment
See Emporium Capwell Co v Western Additional Community Organization,
420 U S 50, 61-70 (1975), NLRB v Tanner Motor Livery, 419 F 2d 216,
218-221 (9th Cir 1969)
72 Steele v Louisville & Nashville RR , 323 U S 192 (1944), NLRB v.
American Postal Workers Missouri Local, 618 F 2d 1249 (8th Cir 1980),
General Truck Drivers Local 315, 217 NLRB 616 (1975), enfd 545 F 2d
1173 (9th Cir 1976)
any, to exercise its discretion with complete good
faith and honesty, and to avoid arbitrary conduct.
A breach of the statutory duty of fair representa-
tion occurs only when a union's conduct toward a
member of the collective-bargaining unit is arbi-
trary, discriminatory, or in bad faith.73
A labor organization which fails to live up to this obli-
gation unjustifiably restrains employees in the exercise of
their Section 7 rights and thereby violates Section
8(b)(l)(A) of the Act.74 The duty of fair representation
gives employees a correlative right under Section 7 to be
represented without arbitrary, irrelevant, or invidious
discrimination by their exclusive representative.75 More-
over, it is also clear that the duty of fair representation
extends to the investigation and representation of a griev-
ance.76 At the same time, however, the Board and the
courts have recognized that unions must necessarily be
allowed a "wide range of reasonableness" in servicing
their constituencies,77 i.e., processing grievances, but in
the exercise of that discretion, a union must act in "good
faith, with honesty of purpose, and free from reliance on
impermissible consideration."78 Accordingly, a union
does not violate the duty of fair representation where it
refuses to process a grievance pursuant to a reasonable
interpretation of the collective-bargaining agreement79
and/or a good-faith evaluation as to the merits of the
complaint.80 However, the Supreme Court in Vaca v.
Sipes explicitly held that a union will breach its duty of
fair representation when it has "arbitrarily ignored a
7a Also see Ford Motor Co. v Huffman, 345 U.S 330 (1953), Wallace
Corp v NLRB, 323 US 248 (1944), H H. Robertson Co, 263 NLRB
1344 (1982)
74 In its landmark decision in Miranda Fuel Oil Co, 140 NLRB 181
(1962), the Board held at 185
Viewing these mentioned obligations of a statutory representative in
the context of the "right" guaranteed employees by Section 7 of the
Act "to bargain collectively through representatives of their own
choosing" we are of the opinion that Section 7 thus gives employees
the right to be free from unfair or irrelevant or invidious treatment
by their exclusive bargaining agent in matters affecting their employ-
ment This right of employees is a statutory limitation on statutory
bargaining representatives , and we conclude that Section 8(b)(1)(A)
of the Act accordingly prohibits labor organizations, when acting in
a statutory representative capacity, from taking action against any
employee upon considerations or classifications which are irrelevant,
invidious, or unfair
Although Miranda was reversed by the United States Court of Appeal
for the Second Circuit, 326 F2d 172 (1973), this court rejecting the
Board's premises that a violation of the duty of fair representation consti-
tuted an unfair labor practice, the United States Supreme Court approved
the doctrine in Vaca v Sipes, supra See Postal Service, 240 NLRB 1198
(1979), enfd. in pertinent part 618 F.2d 1249 (8th Cir 1980), Laborers
Local 300, 235 NLRB 334 (1978)
76 Vaca v Sipes, supra at 177-178, 181-183 , Kling v NLRB, 503 F 2d
1044 (9th Cir. 1975), Griffin v. Automobile Workers, 469 F 2d 181 (4th Cir
1972)
76 Hines v. Anchor Motor Freight, 424 U S 554 (1976)
77 Hines Y. Anchor Motor Freight, supra, Ryan v New York Newspaper
Printing Pressmans Union 2, 590 F 2d 451 (2d Cir 1979), Ohio Valley Car-
penters District Council, 226 NLRB 1032 (1976)
78 PPG Industries, 229 NLRB 713 (1977)
79 Steelworkers Local 7748 (Eaton Corp), 246 NLRB 12 (1979),
P P G Industries, supra, Ohio Valley Carpenters District Council, supra
80 Communications Workers Local 3217, 243 NLRB 85 (1979)
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1147
meritorious grievance or processed it in a perfunctory
fashion. 81
Moreover, as the Board stated in Teamsters Local 355,
229 NLRB 1319 (1977), enfd. 597 F.2d 388 (4th Cir.
1979):
However, the issue here is not whether the Re-
spondent discharged its obligations with maximum
skill and adeptness, but whether, in undertaking its
efforts, it dealt fairly. The duty of fair representa-
tion does not require that every possible option be
exercised or that a grievant's case be advocated in a
perfect manner.
Thus a union is not liable under the duty of fair represen-
tation for mere negligance, poor judgment, ineptitude,
forgetfulness, or inadvertence.82
The Board as well as a majority of the courts have
held that a union can violate its duty of fair representa-
tion absent any evidence of bad faith if it is shown that
the union acted in a perfunctory or arbitrary manner.83
As the United States Court of Appeals for the Fourth
Circuit explained in Griffin v. Automobile Workers, 469
F.2d 181, 183 (1972):
Without any hostile motive of discrimination and in
complete good faith, a union may nevertheless
pursue a course of action or inaction that is so un-
reasonable and arbitrary as to constitute a violation
of the duty of fair representation. A union may
refuse to process a grievance or handle the griev-
ance in a particular manner for a multitude of rea-
sons, but it may not do so without reason, merely at
the whim of someone exercising union authority.
And in Miller Y. Gateway Transportation Co., 616 F.2d
272 (7th Cir. 1980), the court, citing Griffin, stated:
We note also that the duty of fair representation is
of special importance when a grievance for wrong-
ful discharge is involved. As the Fourth Circuit
81 Hines v Anchor Motor Freight, supra; Steelworkers Local 15167, 258
NLRB 484 (1981), enf. denied 692 F.2d 1052 (7th Cir. 1982). Compare,
Service Employees Local 579, 229 NLRB 692 (1977), in which the Board
found that the union's grievance investigation was perfunctory and arbi-
trary, arid San Francisco Web Pressmen & Platemakers Union 4, 249
NLRB 88 (1980), in which the Board held that the investigation was rea-
sonable
82 San Francisco Web Pressman Union 4, supra; Teamsters Local 692
(Great Western), 209 NLRB 446 (1974); Operating Engineers Local 18
(Ohio Pipe), 144 NLRB,1365 (1963). In Service Employees Local 579, (Bev-
erly Manor), 229 NLRB 692 (1977), the Board found a violation of the
union's duty of fair representation when the union failed to conduct any
investigation of the asserted reason for a discharge
82 See Beverly Manor Convalescent Center, supra, P.P.G. Industries,
supra; P & L Cedar Products, 224 NLRB 244 (1976); Newport News S ip-
building Co., 236 NLRB 1470 (1978), General Teamsters Local 315
(Rhodes & famieson), 217 NLRB 616 (1975), steelworkers (lnterroyal
Corp), 223 NLRB 1184 (1976); Figueroa de Arroyo v. Sindicato de Trabaja-
dares Packinghouse, 425 F.2d 281 (1st Cir 1970), cert denied 400 U.S. 877
(1970), Holodnak Y. Avco Corp, 514 F.2d 285 (2d Cir. 1975), cert denied
423 U.S 892 (1975), Ryan v New York Newspaper Printing, 590 F.2d 451
(2d Cir 1979); Griffin v. Automobile Workers, 469 F.2d 181 (4th Cir.
1972); Milstead v. Teamsters Local 957, 580 F.2d 232 (6th Cir 1978),
Ruzika v. General Motors Corp, 523 F.2d 306 (6th Cir. 1975), cert. denied
104 S Ct. 424 (1976); Miller v. Gateway Transportation Co., 616 F.2d 272
(7th Cir. 1980); Kesner v. NLRB, 532 F 2d 272 (7th Cir. 1976), cert.
denied 429 U.S. 983 (1976).
said, "A Union must especially avoid capricious and
arbitrary behavior in the handling of a grievance
based on a discharge-the industrial equivalent of
capital punishment" Griffin v UAW, 469 F.2d 191
(4th Cir. 1970).
Additionally, a union may not wilfully misinform a
grievant concerning the action being taken on his case.84
The Respondent in its brief asserts:
In the instant case the General Counsel did not
allege or offer any proof that, Respondent acted in
an invidious, hostile, or discriminatory manner to-
wards Guzman. The General Counsel stated it
would meet the burden of proving that Respondent
processed the grievance in a "perfunctory or gross-
ly negligent" manner.
The General Counsel in her brief states:
The issue before the Administrative Law Judge
then is not whether the Union acted with a "hostile
or discriminatory" intent; rather, whether the
Union's handling of Guzman's grievance was so un-
reasonable as to be arbitrary.
In reviewing the events following the discharge of
Guzman, I perceive a pattern of conduct on the part of
the Respondent so egregious and arbitrary as to warrant
a finding_ that the Union failed in its duty of fair repre-
sentation in violation of Section 8(b)(l)(A) of the Act.
The evidence clearly shows that both Guzman and
Assistant Shop Steward Boyle orally contested Guz-
man's discharge at the disciplinary meeting on 30 De-
cember 1982.85 The Hospital's director of security, Fo-
gerty, then informed them that Guzman's termination
would stand. The collective-bargaining agreement be-
tween the Hospital and the Union provides that, "Any
grievance shall be submitted within ,a reasonable time
through the Shop Steward and/or a Union Representa-
tive to the Director of Security, whose answer shall be
given no later than three (3) days after the submission of
the grievance to the Director of Security." Thus it
would appear that the "Step 1" stage of the grievance
procedure was satisfied with what occurred at the meet-
ing.86 According to the uncontradicted testimony of
Guzman, Boyle advised him after this meeting ended
that he would inform the Union's shop steward,
h
84 Security Personnel (Church Charity), 267 NLRB 974 (1983)
85 Trowers, who usually represents the ,,Union at such disciplinary
meetings was on vacation at the time of Guzman's discharge and Boyle
attended the meeting in his stead.
86 The General Counsel asserts in her brief that, "Respondent's 'repre-
sentation' at the Step 1 grievance meeting was so arbitrary as to amount
to a violation of Section 8(h)(1)(A) of the Act." I do not agree. There is
no evidence in the record winch shows that Boyles "representation" of
Guzman at this meeting was "so arbitrary" as to amount to a violation of
the Act Although Boyle obviously was not well informed about the
technical aspects of the bargaining . agreement's requirements in such
cases, he did challenge the fairness of the meeting concerning the Hospi-
tal's failure to afford Guzman sufficient time to prepare his case for pres-
entation therein, the fairness of Guzman's termination as it relates to the
facts of his case , and he registered orally the Union's protest of Guzman's
discharge.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trowers, about what had happened at the disciplinary
meeting and that Trowers would contact Guzman there-
after.
The bargaining agreement further provides that "If
after 3 days, the matter has not been settled, the Union
Representative and the [Hospital's] Personnel Director
.. . shall meet within 5 days and attempt to resolve the
matter at issue . If the matter is not resolved within 72
hours after such discussions have begun, either the Union
or the Hospital may submit the matter to arbitration."
While the agreement does not specify which party has
the burden of initiating the "Step 2" meeting, Trowers
testified that it was the Union's normal practice in cases
when employees contested the imposition of discipline at
the "Step 1" meeting , for the shop steward or other
union representative at this meeting, to arrange a "Step
2" meeting as required within the 5-day period, between
the Union's representative, Agar, and the Hospital's per-
sonnel director. Trowers related that all of his five assist-
ant shop stewards had been informed of this procedure
and in cases involving employee discharge or suspension,
had been cautioned to immediately contact Trowers after
the "Step 1" meeting had concluded to advise him of
what had occurred. In Guzman' s case, Boyle neither fol-
lowed the Union's "normal procedure" after the "Step
1" meeting nor contacted Trowers immediately thereaf-
ter to advise him of Guzman's discharge as instructed.
The General Counsel asserts that Boyle's failure to
follow normal procedure in arranging for a "Step 2"
meeting on Guzman's behalf was a breach of the Union's
duty of fair representation and constituted a violation of
Section 8(b)(1)(A) of the Act. I do not agree. Mere neg-
ligence, poor judgment, or ineptitude in grievance han-
dling are insufficient to establish a breach of duty of fair
representation .87 88 As the Board stated in Teamsters
Local 692 (Greater Western Unifreight), 209 NLRB 446
(1974):
[I]t is clear that negligent action or nonaction of a
union by itself will not be considered to be arbi-
trary, irrelevant, invidious, or unfair so as to consti-
tute a breach of the duty of fair representation vio-
lative of the Act. Something more is required. [Em-
phasis added.]
On Trowers' return from vacation "a few days" after
1 January 1983, Boyle related to him for the first time
what had transpired at Guzman's disciplinary meeting on
30 December 1982 and that both he and Guzman had
protested the discharge at this meeting . Trowers admit-
ted that Boyle had asked him to contact Guzman be-
81 The General Counsel asserts in her brief that, "Respondent made no
attempt in this proceeding to offer any reason as to why the assistant
shop steward, Boyle, never followed the normal procedure " However,
according to Trowers' testimony and the statement of Boyle in evidence,
this was the first disciplinary meeting that Boyle attended wherein an em-
ployee was either discharged or suspended, and Boyle apparently was un-
familiar with the requirements of the grievance and arbitration provisions
of the collective-bargaining agreement, notwithstanding Trowers' and
Agar's testimony that he was familiar with these procedures.
88 Plumbers Local 195 (Stone & Webster), 240 NLRB 504 (1979); Mas-
sachusetts Laborers' District Council (Manganaro Masonry), 230 NLRB 640
(1977), King Soopers, Inc., 222 NLRB 1011 (1976)
cause Guzman desired to contest his termination as being
unfair. Trowers testified that he admonished Boyle for
not having contacted him immediately concerning Guz-
man's discharge and for not having followed the Union's
procedures in such cases and told Boyle, "[T]he five
days is up . . . you shouldn't have waited this long," this
with relation to arranging for the next step in the griev-
ance process. However, Trowers did not call Guzman
thereafter nor did he notify Agar about what had oc-
curred. Trowers gave as reasons for his inaction, that the
5-day time limitation within which a "Step 2" grievance
meeting had to be convened had expired by the time
Boyle told him about Guzman's termination, and that
after Trowers returned from his vacation Guzman had
not approached him with a "formal" request that
Trowers proceed on his behalf to process his grievance.
This does not ring true.89 I now start to perceive in the
record evidence the beginnings of the "something more"
required to transform "mere negligence," "inaction," or
"ineptitude" Into what can reasonably be considered as
conduct which is arbitrary, invidious, and unfair and
which thereby breaches the Union's duty of fair repre-
sentation in violation of the Act.
According to the credited evidence herein, Guzman
went to the union office and spoke to Agar about his dis-
charge by the Hospital, in mid- to late-January 1983. At
that time Agar had already received a letter from the
Hospital notifying the Union that Guzman had been ter-
minated. The letter is dated 4 January 1983, but was ap-
parently not received by the Union until 12 January
1983. The collective-bargaining agreement between the
Hospital and the Union provides, "In all cases involving
88 Trowers testified that if an employee indicates his desire to contest
his discharge, the Union "automatically" sets in motion the next step in
the grievance machinery by arranging a meeting between the Union's
representatives and the Hospital's personnel director Boyle had advised
Trowers that Guzman wanted to contest his termination and that both he
and Guzman had orally done so to the Hospital's director of security at
the "Step I" meeting If, as Trowers indicated, he believed that Guz-
man's grievance was now time-barred by Boyle's failure to follow proper
procedure, why would he need a "formal" request from Guzman to pro-
ceed further? Why not just tell Guzman that the Union could not process
his grievance thereafter because it was "untimely." Additionally, Trowers
gave as a reason for requiring such a "formal" request that should he
proceed to process an employee's grievance on his own, the employee
involved might deny at the grievance meeting that he had any desire to
pursue his grievance, and Trowers would thereby be placed in an embar-
rassing position with the Hospital accusing him of exerting pressure on
the employee to grieve his discipline But again , he had already been told
by Boyle that Guzman desired and had contested the discharge More-
over, Trowers' failure, under the circumstances present herein, to notify
Agar of what had happened is most suspicious Guzman's case involved a
discharge, the most serious discipline which can be assessed against an
employee and the impact thereof was exacerbated by Boyle's failure to
take the proper steps to timely process the grievance presumably causing
Guzman's grievance to become time-barred, yet Trowers deemed this not
important enough to apprise Agar about From all the above, a strong
inference arises that Trowers, aware that Boyle had mishandled Guz-
man's grievance by causing it to become time-barred, and because he was
the shop steward, presumably responsible for the actions of the assistant
shop stewards whom he apparently supervised for the Union, was loath
to contact Agar and assume the consequences and blame for what had
occurred, unless compelled to do so Since he had not heard from
Guzman, who knows what could happen in the interim to take him off
the hook, so to speak If indifference to Guzman's grievance, along with
a desire to cover up Boyle's mistake, motivated his inaction , this also
would be damning
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1149
the discharge or suspension of an employee, the Hospital
must immediately notify the employee in writing of his
discharge or suspension and the reason therefor. Such
written notice shall also be given to the Shop Steward
and copy mailed to the Union within twenty -four (24)
hours from the time of the discharge or suspension. If
the Union desires to contest the discharge or suspension,
it shall notify the Hospital within five (5) working days
from the receipt of notice of discharge or suspension."
Agar testified that after receiving the Hospital 's letter re-
garding Guzman 's discharge , he did nothing about it be-
cause he did not know that Guzman wanted to contest
his termination . However, Agar admitted that he was un-
aware of the above contract provision regarding dis-
charges and suspensions in the bargaining agreement and
that this was his first experience with the discharge of a
security guard employee at the Hospital since becoming
the Union 's business representative of such guard unit.
In Milstead v. Teamsters Local 957, 580 F .2d 232 (6th
Cir. 1978), the court noted that:
Certainly the duty of fair representation may be
breached whenever a union ineptly handles a griev-
ance because it is ignorant of those contract provi-
sions having a direct bearing on the case.
The inept handling of Guzman 's grievance herein, par-
tially because of the union representative 's ignorance of
the collective-bargaining agreement 's provisions having a
direct bearing on the case, breached its duty of fair rep-
resentation.
In the instant case , Boyle, as the Union 's representa-
tive at the "Step 1" stage of the grievance process, was
unaware of the grievance provisions of the collective-
bargaining agreement requiring , in substance , that repre-
sentatives of the Hospital and the Union meet within 5
days after a grievance has been submitted to the Hospi-
tal's director of security and the matter has not been set-
tled within a prescribed period . 90 Boyle was apparently
also unfamiliar with the practice established by the
Union in discharge cases in connection with these provi-
sions, wherein the shop steward or assistant shop stew-
ards take steps within these 5 days to arrange for such a
"Step 2" grievance meeting upon an employee 's timely
indication to the Union that he contests his discharge.
Lacking this knowledge , Boyle did nothing after the
conclusion of Guzman 's discharge meeting, waiting until
Trowers returned from vacation whereupon he advised
Trowers of what had occurred regarding Guzman.
Boyle's inaction seemingly time -barred Guzman 's griev-
ance from further processing to the "Step 2" stage of the
grievance process.
After Trowers was informed by Boyle of Guzman's
termination and his desire to contest his discharge,
Trowers did nothing to effectuate Guzman 's grievance.
He failed to get in touch with Guzman , even to tell him
that his grievance was time-barred , failed to notify Agar
about this problem although common sense would dic-
tate that he do so in the interest of the Union's affairs,
90 Art. XIX (C and D) of the collective-bargaining agreement (G.C.
Exh. 4).
and even failed to contact the Hospital to see what could
be done in Guzman's behalf or under the circumstances
to at least mitigate the Union's complicity in creating the
problem . 91 Moreover, when the Union received the
Hospital 's letter regarding Guzman 's discharge, being un-
aware of the bargaining agreement provisions concerning
discharges and suspensions , 9 a which require that the
Hospital notify the employee, shop steward , and the
Union of the discharge within a certain time limit, wher-
einafter the Union must notify the Hospital within 5 days
after receipt of the letter that it contests the discharge,
Agar did not contact the Hospital in compliance with
such requirement . While it is arguable that the Hospital's
own untimely compliance with the provisions of the bar-
gaining agreement might offset the Union's failure to
give proper and timely notice that it contested Guzman's
discharge, its inaction in this regard may well have
ended Guzman 's chance to dispute his termination
through this channel as well.
The Respondent's above conduct as a whole tran-
scends the concept of "mere negligence" and "ineptness"
and constituted a breach of its duty of fair representation
in violation of Section 8(b)(1)(A) of the Act.93
Moreover, the Respondent 's subsequent handling of
Guzman's grievance only tends to reinforce a finding
that the Union breached its duty of fair representation by
processing his grievance in a perfunctory fashion. After
Trowers had been informed by Guzman that Agar
wanted him to conduct an investigation of Guzman's as-
sertions and report back to Agar his findings , Trowers
did so . Trowers testified that he checked the logbook but
found no entry therein that either Guzman or Goodman
had called in to report an absence on 28 December 1982.
Trowers reviewed the work schedules and determined
that Goodman had worked his tour of duty on 29 De-
cember 1982 and therefore would have had no reason to
have called in to report an absence . Trowers than spoke
to Copeland who remembered receiving a call on the
evening in question from either Guzman or Goodman re-
porting an absence but "many things happened" that
evening and he may not have recorded the call in the
logbook.
After completion of his investigation , 94 he reported to
Agar and, based on his findings that the logbook con-
91 The General Counsel in her brief asserts that : "At most, Trowers
returned from vacation a day or two outside this 5-day time limit, and in
all probability could have prevailed upon the Employer to go to a Step 2
meeting over Guzman's discharge in view of the fact that the discharge
had occurred over the holidays and Trowers was away on vacation."
This is mere conjecture which the record evidence does not support The
Hospital refused to waive the timeliness of the grievance as a defense re-
garding Guzman's grievance. But I concur with the General Counsel's
implication that Trowers should have tried and not sat back and did
nothing.
92 Art. XX(A) of the collective-bargaining agreement (G.C. Exh. 4).
ss Milstead v. Teamsters Local 957, supra; Ruzika v. General Motors
Corp, 529 F.2d 306 (6th Cir 1975) (Ruzika 1); Ruzika v. General Motors
Corp., 649 F.2d 1207 (6th Cir . 1981) (Ruzika II). Also see Dutriasic Y.
Caterpillar Tractor Co., 749 F.2d 1270 (9th Or. 1983).
94 I do not find that Trowers investigation was perfunctory although it
could have been more thorough . Contrast P & L Cedar Products, 224
NLRB 244 (1976)
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tained no record of Guzman's call, Guzman's alleged in-
consistent account of what occurred as given to
Trowers, Copeland's statement that he had received a
telephone call that evening from Guzman or Goodman
which Trowers did not fully credit, Guzman's grievance
being time-barred and Guzman's prior disciplinary warn-
ing and 1-day suspension, Trowers recommended that
the Respondent not proceed further with Guzman's
grievance. Trowers stated that Agar told him the matter
would be discussed with the Union's attorneys and a de-
cision made whether Guzman's case would be taken to
arbitration. Guzman testified that during this period he
himself had sought to obtain evidence to support his
story which Agar had agreed he should do. Although
both Agar and Trowers testified that they had mentioned
to Guzman that "the five days time was up" and that the
"time period" had expired, neither of them clearly told
him that his grievance was time-barred and that there-
fore the Union would not process his grievance further.
In fact the evidence shows that Agar had encouraged
Guzman to secure witnesses' statements corroborating
his allegations and assured him that the Union would
then take his case to arbitration, notwithstanding Agar's
own admission that he had about decided that the Union
would not proceed with Guzman's grievance. Moreover,
and unexplainedly, neither Agar nor Trowers, now
having full knowledge of what had occurred, sought to
meet with Hospital representatives to attempt to resolve
Guzman's grievance as to procedure and/or substance
from January to April 1983.
On 12 April 1983 at the end of a meeting held between
Agar and Trowers representing the Union, and Fogerty
and O'Leary for the Hospital regarding a different
matter, an impromptu meeting was held in which
Guzman and Copeland were allowed to recount what
had occurred on the evening of 28 December 1982. Al-
though Agar asked the Hospital to reinstate Guzman,
Fogerty refused. Agar then told Guzman that there was
a "slight technicality," that the Union might be time-
barred from processing his grievance . Agar said that he
had to discuss this with his attorneys and would contact
Guzman thereafter. The Union failed to call Guzman
who then made an unsuccessful attempt to contact Agar
thereafter.
The evidence shows that Guzman visited the Union's
office on 25 May 1983 and met with Agar and Vincent
Bracco, the Union's president. He was now told that the
Union would not process his grievance. Guzman offered
to obtain statements from Boyle, Copeland, and Trowers
regarding the circumstances surrounding his discharge
and Agar and Bracco then said that the Union would
take his case to arbitration if he did so. Guzman then
went to the Board's office to seek assistance in obtaining
such evidence which led to Board Agent Glass contact-
ing Bracco to find out exactly what the Union needed
from Guzman and to obtain an assurance that if this evi-
dence was produced, the Union would take Guzman's
matter to arbitration. Bracco told her that should the evi-
dence be produced the Union would take Guzman's case
to arbitration. According to the credited testimony of
Guzman, on 27 May 1983 he met with Bracco at the
union office and offered Bracco the statements he had
obtained from Boyle, Copeland, and Trowers including
his own, but Bracco refused to accept them because the
Board was now handling this matter, this despite the fact
that Guzman had not filed a charge with the Board's Re-
gional Office as yet and Bracco had been told this by
Glass. It should be noted that up until this latter conver-
sation with Bracco, Guzman had not been unequivocally
advised that the Union would not process his grievance
any further or take his grievance to arbitration. Last, on
9 June 1983 Guzman forwarded these statements to the
Union by registered mail. Receiving no response thereto
from the Union, Guzman called Agar and was now told
flat out that the Union would not take his grievance to
arbitration.9 5
The duty of fair representation imposes on a Union the
duty not to "purposely keep [Guzman] uninformed or
misinformed concerning" his grievance . 96 It is clear
from the evidence herein that Agar's and Bracco's con-
duct constituted a willful attempt to extricate the Union
from Guzman's grievance while covering up Boyle's ini-
tial mistakes and Trowers' and Agar's subsequent ones.
In this connection union officials repeatedly misrepre-
sented to Guzman that they would consider his griev-
ance on the merits when in fact they had already decid-
ed not to pursue it. The credible evidence shows that the
Union had decided that Guzman's grievance was time-
barred and subsequently questioned its merit, although
the latter as a screen to add justification to its actions.97
Despite this Agar and Bracco indicated that although
there was "a problem," the Union would process his
grievance through arbitration, purposely not telling him
the truth because the Union itself had caused the griev-
as The pattern of conduct of the union officials regarding their treat-
ment of Guzman during this period implies an attempt to cover up their
own failure to properly represent Guzman in processing his grievance by
blaming the grievance being time -barred on Guzman instead of them-
selves, by encouraging him to obtain evidence in his own defense when
they had basically decided that they would not continue to process his
grievance , by avoiding telling him out right of the seriousness of the
time-bar factor, and by generally treating his grievance with indifference,
delay, misdirection , negligence, and unfairness.
96 Groves-Granite, 229 NLRB 56 (1977), see also Electrical Workers
Local 801 v NLRB, 307 F 2d 679 (D C. Cir 1962), cert denied 371 U S
936 (1962)
97 Even the reasons advanced by the Respondent's witnesses show a
pattern of deception and unfairness belying their truth . Agar and
Trowers offered that neither Guzman's nor Goodman 's names appeared
in the logbook , yet Copeland 's unequivocal testimony fully explaining
how this occurred was only slightly considered Moreover , Boyle be-
lieved Trowers' story on corroboration by Copeland and even Trowers
seemed to do so finally as noted by his written statement in evidence.
The prior warnings considered by Agar and Bracco in making this deci-
sion were barred from admission at any grievance hearing pursuant to the
6 months' "statute of limitation" in the bargaining agreement It matters
not that they were ignorant of this provision They could easily have dis-
covered it on reading the agreement And, if Guzman was innocent of
the infraction he was discharged for, his prior suspension was of no
moment or relevance . Nor can it be said , as Agar and Trowers asserted,
that Guzman's evidence was insufficient In truth it strongly favors
Guzman As far as Guzman's grievance being time-barred , they should
have been candid with Guzman about his chances in the grievance-arbi-
tration process Instead they led him down the garden path , keeping his
hopes deceptively alive. Why9 In its efforts to rid itself of the trouble-
some problem of Guzman's grievance which the Union had itself created
by its agent 's own negligence , ineptness, inaction , and malfeasance, it
seized on any opportunity to reject the grievance without having to
admit or disclose their complicity therein
TEAMSTERS LOCAL 814 (BETH ISRAEL MEDICAL) 1151
ante to be time-barred through its own inaction and neg-
ligence which the Hospital` could raise to justify its refus-
al to hear such untimely grievance.98 Moreover, in Brac-
co's refusal to handle Guzman's grievance because he
had gone to the Board for assistance , an activity protect-
ed by the Act, the Union breached its duty of fair repre-
sentation since this amounted to a discriminatory consid-
eration for its action.9 9 `
Based on all the foregoing, I find and conclude that in
handling Guzman's grievance the Respondent acted in an
arbitrary and perfunctory manner in violation of its duty
to fairly represent Guzman in presenting his grievance.
Accordingly, the Respondent violated Section 8(b)(1)(A)
of the Act.
3. Refusal to process his grievance because Guzman
sought assistance from the Board
The credible evidence herein establishes that since
about 27 May 1983 the Respondent failed and refused to
process Guzman 's grievance because he sought assistance
from the National Labor Relations Board , Bracco re-
fused to accept the evidence Guzman offered to him in
support of his contentions and told Guzman that the
Union would not handle his grievance because the Board
was "taking care of it."
It is well established that a Union 's refusal to process
an individual 's grievance because he has filed charges
with or sought assistance from the Board constitutes re-
straint and coercion within the meaning of Section
8(b)(l)(A) of the Act.100 While it may be argued that
the Respondent subsequently filed an arbitration request
in Guzman's matter, the violation occurs at that point in
time when the individual 's Section 7 rights have been
"restrained and coerced" and that is when the threat is
made not to process the grievance because the individual
has filed a charge or sought the Board 's assistance.101
Moreover, it is still unclear from what has occurred in
this case, whether Guzman's termination is arbitrable at
all or is time -barred.
Accordingly, the Respondent 's refusal to process Guz-
man's grievance because he sought assistance from the
Board establishes an independent violation of Section
8(b)(1)(A) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section
III, above , found to constitute unfair labor practices de-
fined in the Act, occurring in connection with the oper-
ations of the Employer described in section I, above,
have a close, intimate , and substantial relationship to
98 SecuntysPersonnel, 267 NLRB 974 (1983); Automobile Workers Loc I
417 (F Icon Industries), 245 NLRB 527 (1980); Beverly Manor Convales-
cent Center, 229 NLRB 692 (1977)
99 Groves-Granite, supra
100 Plumbers Local 598 (Columbia Mechanical), 250 NLRB 75 (1980);
Graphic Arts Union 96 B (Williams Printing Co.), 235 NLRB 1153 (1978);
Assn. of Packers & Drivers (Guy's Foods), 188 NLRB 608 (1971), Teamsters
Local 703, 188 NLRB 873 (1971); Selwyn Shoe Mfg. Corp., 172 NLRB 674
(1968) Also see NLRB v. Teamsters Local 703 (Dominick 's Finer Foods),
81 LRRM 2488 (7th Cir 1972).
101 Assn. of Packers & Drivers, supra
trade,} traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow thereof.
V. THE REMEDY'02
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act, I shall recommend that it be or-
dered to cease and' desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
It is not the function of the Board to decide the merits
of a grievance in determining whether the refusal to
process that grievance was violative of the Act; it is suf-
ficient to determine from the record that the grievance
was not "clearly frivolous."103 Edwin Guzman's griev-
ance was clearly not frivolous. Had the Union processed
Guzman's grievance properly, reasonably and in a timely
fashion it might have successfully prevailed. on the Hos-
pital to rescind or modify the discipline. Additionally, an
arbitrator , believing Guzman and the evidence he was
able to produce, could well find that the Hospital erred
in discharging him when it did.
Thus, the uncertainty whether Guzman's grievance
would have been found meritorious or would have been
otherwise adjusted is a direct product of the Respond-
ent's unlawful action. Where, as here, resolution of that
uncertainty is required for the determination of monetary
responsibility , it is proper to resolve the question in favor
of the injured employee and not the wrongdoer.104 Ac-
cordingly, for the purposes of remedy, I shall presume
that if fully and fairly processed, Guzman's grievance
would have been found meritorious and that he would
have been reinstated with backpay.105
The Respondent's backpay liability must be limited to
any loss Guzman suffered as a result of the refusal to
consider and process his grievance . That grievance is
now time-barred; however , the Respondent may yet be
able to prevail on the Hospital to waive those time limits
102 It should be noted that the Respondent, a labor organization repre-
senting guards, is affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America The Respond-
- ent is therefore a so-called mixed guard union, one which represents
guards but which also admits nonguards to membership of is affiliated di-
rectly or indirectly with an organization which admits nonguards to
membership Wells Fargo Armored Service Corp., 270 NLRB 789 (1984),
affd. sub nom. Teamsters Local 807 v. NLRB, 118 LRRM 2613 (2d dir.
1985); Brinks, Inc, 274 NLRB 970 (1985). Sec 9(b)(3) of the Act prohib-
its the Board from certifying a union as the collective -bargaining repre-
sentative of a unit of guards when such union is a "mixed guard union."
This notwithstanding, it has been held that an employer may, if it choos-
es, recognize a mixed guard union for purposes of collective bargaining
NLRB v White Motor Corp, 404 F 2d 1100 (6th Cir. 1968), Wells Fargo,
a supra The collective-bargaining agreement between the Hospital and the
Union was in effect during the incidents which comprise the substance of
the allegations herein I therefore believe that the above , would have no
bearing on the findings and conclusions set forth in this decision or as
concerns the remedy imposed herein.
103 Steelworkers Local 15167 (Memphis Folding Stairs), 258 NLRB 484
(1981 ); Glass Bottle Blowers Local 106 (Owens-Illinois), 240 NLRB 324
(1979), Service Employees Local 579 (Beverly Manor Convalescent), 229
NLRB 692 (1977).
104 Steelworkers Local 15167, supra, Service Employees Local 579, supra
105 Ibid On the issue of backpay, contrast Glass Bottle Blowers Local
106 (Owens-Illinois), supra.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
although this Employer refused to do so previously. Ac-
cordingly, I shall recommend that the Respondent make
Guzman whole for any loss of earnings he may have suf-
fered as a result of his discharge by Beth Israel Medical
Center, from the date of that discharge, 30 December
1982, until the earlier of the following occurs: The Re-
spondent secures consideration of Guzman's grievance
by the Hospital and thereafter pursues it in good faith
and with due diligence to arbitration;106 Guzman is rein-
stated by Beth Israel Medical Center, or obtains other
substantially equivalent employment, less net interim
earnings during that period. The backpay due under the
terms of the recommended Order shall include interest to
be computed in the manner prescribed by the Board in
106 I am aware that the evidence shows that the Respondent informal-
ly requested that the Hospital's personnel director waive the time of
filing notice requirements The Employer did not agree to do this and
hear the grievance on its merits Moreover, as indicated herembefore, the
Respondent sought an arbitration hearing on Guzman 's discharge and at
that time, in and around the summer of 1984 , Guzman 's case was sched-
uled first with regard to a hearing on the question of whether Guzman's
discharge was arbitrable as to timeliness and thereafter a subsequent hear-
ing, if applicable , as to the merits of his termination Although over a
year has gone by since this occurred, no further information has been
forthcoming to me or the other parties involved herein Therefore, con-
sideration of events which may have transpired just before or after the
issuance of this decision , and which may have a bearing on the remedial
portion thereof can best be left for resolution at any supplemental hearing
to determine backpay
F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida
Steel Corp., 231 NLRB 651 (1977).10'
CONCLUSIONS OF LAW
1. The Respondent, Local 814, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
2. Beth Israel Medical Center is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
3. By failing and refusing to process the grievance of
Edwin Guzman in regard to the termination of his em-
ployment with Beth Israel Medical Center, the Respond-
ent breached its duty of fair representation, restraining
and coercing Guzman in the exercise of rights guaran-
teed in Section 7 of the Act, and thereby violated Sec-
tion 8(b)(1)(A) of the Act.
4. By failing and refusing to process the grievance of
Guzman because he sought assistance from the National
Labor Relations Board, the Respondent violated Section
8(b)(1)(A) of the Act.
[Recommended Order omitted from publication.]
107 See generally Isis Plumbing Co., 138 NLRB 716 (1962) Also see
Olympic Medical Corp, 250 NLRB 146 (1980); Pioneer Concrete Co., 241
NLRB 264 (1979)