Service Employees International Union, Local 87 (Exemplar Enterprises, Inc.)

National Labor Relations Board - Administrative Judge Opinions

Jan 5, 2016

20-CB-151336 (N.L.R.B. Jan. 5, 2016)

JD(SF)–01–16
San Francisco, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 87
and 20-CB-151336
EXEMPLAR ENTERPRISES, INC.
Jason Wong, Esq.,
for the General Counsel.
Kevin Brunner, Esq.,
for the Respondent.
Thomas Scott Stewart, Esq.,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
MARY MILLER CRACRAFT, Administrative Law Judge. Service Employees International
Union, Local 87 (Respondent or SEIU Local 87) is accused of violation of Section 8(b)(1)(A) of
the National Labor Relations Act (the Act)1 by making a statement that unless an employee
signed a union authorization card authorizing SEIU Local 87 to represent them, it would not help
the employee in the future if the employee had any problems. This case was tried in San
Francisco, California on November 12, 2015.2 Exemplar Enterprises, Inc. (Exemplar) filed the
charge on April 30 and the General Counsel issued the complaint on August 10.

1 Sec. 8(b)(1)(A), 29 U.S.C. §158(b)(1)(A) of the Act provides, inter alia, it shall be an unfair labor
practice for a labor organization or its agents to restrain or coerce employees in the exercise of the rights
guaranteed in Sec. 7, i.e., that right to self-organization, to form, join, or assist labor organizations and to
engage in other concerted activities for mutual aid or protection and to refrain from any or all such
activities.
2 All dates are in 2015 unless otherwise referenced.
JD(SF)–01–16
2
On the entire record,3 including my observation of the demeanor of the witnesses,4 and
after considering the brief filed by counsel for the General Counsel, the following findings of
fact and conclusions of law are made.
5
Jurisdiction and Labor Organization Status
Exemplar, a California corporation, is engaged in the business of providing janitorial
services to commercial and Federal Government customers. During the fiscal year ending May
31, 2014, it provided janitorial services valued in excess of $50,000 directly to customers located 10
outside the state of California. At all material times, it has been an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act. SEIU Local 87 is a labor
organization within the meaning of Section 2(5). Thus this dispute affects interstate commerce
and the Board has jurisdiction of this case pursuant to Section 10(a) of the Act.
15
Facts
Exemplar provides janitorial services in downtown San Francisco for GSA5 at 630
Sansome, 555 Battery, and 50 UN Plaza. After requesting that Exemplar sign its contract with
the San Francisco Maintenance Contractors Association and engaging in picketing directed at 20
Exemplar in February, March, and April, on April 13, SEIU Local 87 filed a petition with the
NLRB to represent janitorial employees employed by Exemplar at its locations in downtown San
Francisco.
On April 22, Exemplar janitorial employee Cuixia Rong, who worked at 50 UN Plaza, 25
received a phone call from Hung Chi Szeto, SEIU Local 87 secretary treasurer. According to
Rong, Szeto said, “Oh, you need to come and sign the union card because we are about to win.
So because we are about to win, if you don’t come to sign the card and in case in the future if
you have any trouble we are not able to help you.” They discussed wages and Rong stated that
she was busy. Szeto responded, “Oh, I know you are very busy. Whenever you have time, please 30
come over and sign the card.” Rong recalled that Szeto further stated, “if I don’t sign the card
right now and if they win the case and then other union members will say, ‘Oh, this person is bad
because she didn’t sign the card.’ And then in case in the future if you need help, they are not
able to help you.”
35

3 Pursuant to the General Counsel’s motion to correct the transcript, the following corrections are
made: p. 48, line 6, “Yes” is changed to “No;” p. 48, line 12, “did you a become” is changed to “did you
become;” p. 48, line 13, “I had” is changed to “I have;” p. 49, line 8, “after the noon” is changed to
“afternoon;” p. 50, line 20, “seeing” us changed to “I seen;” p. 50, line 21-22, “15-16” is changed to “50
to 60;” and p. 51, line 14 “I worked at Macy’s” is changed to “I work at Macy’s.”
4 There is little dispute with regard to the facts of this case. However, when necessary, credibility
resolutions have been made based upon a review of the entire record and all exhibits in this proceeding.
Witness demeanor and inherent probability of the testimony have been utilized to assess credibility.
Testimony contrary to my findings has been discredited on some occasions because it was in conflict with
credited testimony or documents or because it was inherently incredible and unworthy of belief.
5 GSA or the General Services Administration is an independent agency of the United States. It
supplies products and communications for the U. S. Government.
JD(SF)–01–16
3
Szeto recalled the conversation with Rong starting with his asking her to sign the card.
He recalled that Rong brought up something about the benefit of union membership stating that
union members made $13.45 an hour and she earned $18 an hour. Szeto countered that the union
provided benefits. Szeto recalled stating, “We talk you have to be a member before we can help
her, because if not we can’t do much.”5
Analysis
In United Steel Workers of America Local 1397, AFL-CIO (United States Steel Corp.),
240 NLRB 848 (1979), the Board held:10
In judging whether or not [a union representative's] statements violated Section
8(b)(1)(A) of the Act the test of misconduct is not what [he] may have
subjectively intended by his comments, nor whether any employee was in fact
coerced or intimidated by the remarks. Rather, the test is whether the alleged 15
offender engaged in conduct which tends to restrain or coerce employees in the
rights guaranteed them in the Act ..... We have likewise held that union threats to
employees that the union would not represent them also violates [Section
8(b)(1)(A)], particularly when made by a union officer with the apparent
capability of effectuating the actions threatened. . . Such is the case before us.20
Section 7 of the Act specifically gives employees the right to refrain from joining a
union. However, a union, which is the exclusive bargaining representative of all employees in
the unit, must represent all members of the bargaining unit and diligently pursue their
meritorious grievances whether those employees are dues-paying members of the Union or not. 25
Vaca v. Sipes, 386 U.S. 171, 190-193 (1967) (union breaches its duty of fair representation when
its actions toward a member of bargaining unit are arbitrary, discriminatory, or in bad faith).
Statements that a union will not process grievances for nonmembers constitute threats in
violation of Section 8(b)(1)(A). See, e.g., Letter Carriers Local 233 (Postal Service), 311 NLRB
541 (1993) (Union established and maintained an unlawful policy against representing 30
nonmembers equally); Teamsters Local No. 667 (Owens-Corning), 228 NLRB 398 (1977)
(Union told employees it would not represent them unless they joined the union).
There is essentially no credibility conflict between Rong and Szeto. Both testified that
Szeto said Rong had to join the Respondent in order for it to help her. Given the framework of 35
the law, Szeto’s statement that SEIU Local 87 would not assist Rong unless she became a
member, is unlawful. That is, the statement that unless Rong signed a union authorization card,
Respondent would not assist her constitutes a breach of the duty of fair representation to
represent all employees whether or not they are dues-paying members.6 Thus, I find that by
telling Rong that SEIU Local 87 would not help her with problems in the future unless she 40
signed a union authorization card, Respondent restrained and coerced Rong in violation of
Section 8(b)(1)(A).

6 Moreover, even were the statement considered ambiguous, that is, such that Szeto was attempting to
state that without sufficient authorization cards, Respondent would not be able to obtain representative
status, any ambiguity must be resolved against Respondent as the proponent of the statement.
JD(SF)–01–16
4
REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it is
recommended that it be ordered to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.5
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended7
ORDER10
The Respondent, Service Employees International Union, San Francisco, California, its
officers, agents, and representatives, shall
1. Cease and desist from15
(a) Telling an employee that SEIU Local 87 would not help her with problems in the
future unless she signed a union authorization card.
(b) In any like or related manner restraining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.20
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its union office in San Francisco,
California, copies of the attached notice marked “Appendix.8 Copies of the notice, on 25
forms provided by the Regional Director for Region 20, after being signed by the
Respondent’s authorized representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous places including all places where
notices to employees and members are customarily posted. In addition to physical
posting of paper notices, the notices shall be distributed electronically, such as by 30
email, posting on an intranet or an internet site, and/or other electronic means, if the
Respondent customarily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material. In the event that, during the
pendency of these proceedings, Exemplar has gone out of business or closed the 35
facilities involved in these proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and former employees
employed by Exemplar at any time since April 22, 2015.

7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted
by the Board and all objections to them shall be deemed waived for all purposes.
8 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the
notice reading “Posted by Order of the National Labor Relations Board” shall read “Posted Pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations
Board.”
(b) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible off
steps that the Respondent has taken to comply.
Dated, Washington, D.C. January 5, 20165
10

5
icial on a form provided by the Region attesting to the
____________________
Mary Miller Cracraft
Administrative Law Judge
JD(SF)–01–16
JD(SF)–01–16
APPENDIX
NOTICE TO EMPLOYEES AND 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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT tell you that SEIU Local 87 will not help with your problems in the future unless you sign a union
authorization card.
WE WILL NOT in any like or related manner restrain or coerce you in the exercise of your rights guaranteed by
Section 7 of the Act.
WE WILL satisfy our duty of fair representation to all employees.
SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 87
(Respondent)
Dated By
(Representative) (Title)
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CB-151336 or by using the
QR code below. Alternatively, you can obtain a copy of the decision from the Executive Secretary, National
Labor Relations Board, 1015 Half Street SE, Washington, D.C. 20570-0001, or by calling (202) 273-1940.
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400
San Francisco, California 94103-1735
Hours: 8:30 a.m. to 5 p.m.
415-356-5130
JD(SF)–01–16
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING
AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY
QUESTIONS CONCERNING THIS NOTICE OR COMPLIANCE WITH ITS PROVISIONS MAY BE
DIRECTED TO THE ABOVE REGIONAL OFFICE’S COMPLIANCE OFFICER, (510) 637-3253.